Some Schools Have Lessons to Learn

From the October 2010 Of Counsel

For many lesbian, gay, bisexual, or transgender youth, antigay and sexist harassment continue to be a stark reality. Based on press reports during September 2010 alone, at least five teenagers killed themselves after suffering from antigay and sexist bullying. Lambda Legal's advocacy for students' right to attend schools without being harassed for simply being who they are continues to be necessary and an important priority. Lambda Legal's victory on behalf of Jamie Nabozny nearly 15 years ago resulted in the first federal appellate decision to hold that school officials' deliberate indifference to harassment of a student based on his sexual orientation or sex violates equal protection. While some educators now live up to their responsibility to address sexist and antigay bullying, the sad fact is that too many others have yet to learn the lesson that Jamie Nabozny's case sought to teach.

A more recent example of a school system that failed one of its students is Lambda Legal's current case on behalf of Charlie Pratt against the Indian River Central School District and some of its staff. As described in our complaint, Charlie endured years of harassment and abuse in school because he did not conform to others' stereotypes of masculinity and because he is gay. Because his gestures and manner of speaking were more feminine than those typically associated with boys, Charlie was repeatedly called names like "pussy," "sissy" and "girl" and was mocked with feminine gestures; because he is gay, he was repeatedly called names like "faggot." The hostility started in elementary school, where students taunted and beat up Charlie, and then it escalated in middle school, where verbal and physical harassment was a daily occurrence and included threats of violence. And the abuse followed Charlie to high school, where it reached its greatest intensity and included verbal and physical harassment, threats (including one on Charlie's life) and repeated defacing of his locker with the word "fag."

Despite repeated pleas from Charlie's parents, school officials and employees took no meaningful action to address the unmistakably hostile educational environment. Instead, they treated Charlie as if he were the problem. Ultimately, the years of harassment and abuse ended for Charlie not because of any corrective action by the school district or its staff, but because Charlie's parents, after years of facing officials' indifference to his plight, withdrew him from school.

When we filed Charlie's complaint in April 2009, we were not expecting the school and its staff to admit liability for failing to protect Charlie. But we were surprised and concerned to see the defendants present legal arguments that seek to erase important protections for students. Three of those arguments alarmed the U.S. Department of Justice, prompting it to submit an amicus brief encouraging the court to reject them.

In the first of those three arguments, the defendants argue that harassment and discrimination for not conforming to sex stereotypes is not "based on sex." But it has been more than 20 years since the U.S. Supreme Court held, in Price Waterhouse v. Hopkins, that evidence that actions were based on non-conformity with sex or gender stereotypes can support a claim of sex discrimination. And in 2001, the U.S. Department of Education's Office of Civil Rights explained that it can be sex discrimination to harass a student based on nonconformity with stereotyped notions of masculinity or femininity. This issue is important because many youth who do not conform to sexist stereotypes of masculinity or femininity suffer harassment for that reason alone—regardless of their sexual orientation or gender identity. And although some LGBT youth do appear to conform to sex or gender stereotypes, many do not. Moreover, mistreating a student based on nonconformity with sexist stereotypes is mistreatment based on sex—plain and simple—and should be called out for what it is.

Second, the defendants implausibly argue that Charlie's sex discrimination claims are not viable because he also alleges harassment and discrimination based on sexual orientation—as if mistreating someone for being gay makes discrimination because of sex either acceptable or inconsequential. But in Lambda Legal's victory before the U.S. Supreme Court, Romer v. Evans, it was clearly established that the fact that Charlie is gay does not deprive him of the protection of other laws, such as those against sex discrimination. And the fact that Charlie was also harassed and discriminated against based on his sexual orientation does not immunize the defendants from liability under Title IX or equal protection for harassment and discrimination because of Charlie's sex or nonconformity with sex stereotypes.

Third, the defendants urge the court to adopt the absurd position that school vacations such as summer recesses break up the "continuous" nature of the hostile education environment in the defendants' schools, absolving them of liability under Title IX. But evaluation of the hostility of the education environment should focus on the acts of hostility, not on summer recesses. Sexist harassment of Charlie was a persistent and recurring problem during the time that he was a student at various schools in the school district. The defendants' novel proposed standard would cause perverse results. Under it, a school district and its staff who are deliberately indifferent to harassment that is so severe, pervasive and objectively offensive that it drives a child from school—thereby depriving him or her of equal educational opportunities altogether—would be immune from liability.

We have yet to see what influence the Justice Department's amicus brief will have in Charlie's lawsuit. But because the department is charged with enforcing federal law, its position has importance in and of itself. Its publicly staking out a position in support of gay youth should discourage others from following down Indian River's path of irresponsibility.

It would be an understatement to say that we don't always agree with the Justice Department. Its positions in lawsuits challenging the constitutionality of the Defense of Marriage Act and "Don't Ask, Don't Tell" are disappointing and disturbing. But when each week, and lately each day, brings news of the harm suffered by yet another young person because adults failed their duty to address harassment effectively, we welcome the department's support of their right to a safe education environment. That is what we would expect from a Department of Justice that lives up to its name.