Tuesday, February 9, 2016
Middle School Boy Told to Take Off "Elsa" Dress on Spirit Day, Raising Free Speech and Sex Discrimination Issues
According to local news outlet, Ethan Chase Middle School in Menifee in South California held a spirit day last week and students were encouraged to wear Disney costumes. One boy, Austin Lacey, dressed up as Elsa from the movie "Frozen." Apparently, he was a big hit with his friends and several asked to have their picture taken with him. The school principal, however, told him to take the costume off. According to Austin's mom, the principal felt that the costume was inappropriate for boys. Whether the principal entirely disputes that claim or believes he had the authority to make Austin change in any event is a little unclear. The superintendent released a statement in support of the principal, indicating that: "This action was taken in accordance with district policies. At no time was there an indication that the student was expressing any particular message. The Principal's action was based upon the need to stop a general disruption to the school environment."
The statement sounds as though it came straight out of the First Amendment playbook for school officials: the action was not "viewpoint based" and was intended to prevent a "substantial disruption," which Tinker v. De Moines, 393 U.S. 503 (
Here, if Austin had worn the costume on some random day, the district's action would easily stand up to scrutiny because it likely would be disruptive. The fact that Austin wore it on a spirit day makes the response far more questionable. Spirit day itself causes some level of disruption--disruption which the school has affirmative made the decision to tolerate it believing that it serves some great value. In that context, it would seem that the school would need to show that Austin's dress caused some disruption/excitement above and beyond what was already occurring. Otherwise, it would appear that he was being singled out.
The claim that Austin was not engaging in expressive speech also seems questionable. A fair number of boys have been dressing up as "girls" on spirit day for decades with no obvious viewpoint to express. On that basis, one might argue that that his dress is not entitled to free speech protection. On the other hand, cross-dressing is clearly designed to be provocative, to cross-boundaries, and to show one's peers the lengths one will go to support one's school or athletic program. In other words, it is a statement that "I have the ultimate spirit." In this respect, it is classical expression and warrants full protection.
One might take the expression of cross-dressing even further here. Given the extent to which transgender rights in public school have been at the forefront of public discourse over the past year, one could imagine that Austin was attempting to show solidarity with this movement or that the students who apparently favored his expression more than other cross-dressing boys of the past were showing solidarity.
Based on the superintendent's statement, my guess is that Austin did not directly articulate this solidarity viewpoint to the principal and hence the claim that he was not expressing himself. Yet, this still does not necessarily get the school off the hook. Austin could theoretically avail himself of the same Title IX protections that various gay, lesbian, and transgender youth have raised recently: it is sex discrimination for schools to say girls can wear dresses but boys cannot (regardless of the speech aspects of the issue).
But again, I know little of the facts and do not offer this as the final or even insightful word on Austin's story, but rather simply an opportunity to think through the issues.
Wednesday, February 3, 2016
In Transgender Student Rights Case, Two of Three Judges Have Interesting Track Records on Related Issues; Sparks Will Surely Fly
The Fourth Circuit Court of Appeals heard oral arguments last week in G. G. v. Gloucester County School Board. Gloucester involves Gavin Grimm's claim that the school board's refusal to permit transgender students to use the restrooms consistent with their gender violates Title IX, which prohibits sex discrimination. As a case of first impression, it has garnered national attention and been discussed various times on this blog. The case also includes high profile attorneys, with the ACLU representing Mr. Grimm, six states filing amici briefs in support of Gloucester, and the U.S. Department of Justice filing a brief in support of Grimm.
Last week offered the first glimpse of the three judges who will decide the case. This panel will surely produce fireworks behind closed doors and potentially in their final opinion. The three judge panel includes judges Paul Niemeyer, Henry Floyd, and Andre Davis. Niemeyer and Floyd are the most interesting. Niemeyer wrote the 2-1 opinion by the Court of Appeals upholding Virginia Military Institute's refusal to admit women. The Supreme Court, of course, reversed, holding that the Virginia's exclusion of women failed intermediate scrutiny. More recently, Niemeyer dissented in a 2-1 opinion that struck down Virginia's ban on same-sex marriage. He reasoned that Virginia could stick to its traditional definition of marriage without violating anyone's fundamental rights. He added that he was concerned with the ramifications of forcing Virginia to recognize a broader definition of marriage. He wrote:
Wednesday, January 20, 2016
A California district has ruled that a claim alleging that athletic staff at Pepperdine University discriminated against two former students because of their perceived sexual orientation could proceed despite Pepperdine's argument that sexual orientation is not cognizable under Title IX. The district court in Videckis v. Pepperdine University, No. CV 15-00298 (C.D. Cal. Dec. 15, 2015), cited recent Equal Employment Opportunity Commission (EEOC) rulings that sexual orientation discrimination is covered under Title VII. In Videckis, two college athletes allege that the Pepperdine women's basketball staff harassed and discriminated against them because of the staff's belief that plaintiffs were lesbian. The plaintiffs claim that Pepperdine's coaching staff repeatedly asked them about their private sexual behavior and told the players that lesbianism would not be tolerated on the women's basketball team. Plaintiffs also claim that they were refused clearance to play basketball because of the coaching staff's discriminatory views against lesbians. In the order, the district court wrote that "[i]t is impossible to categorically separate "sexual orientation discrimination" from discrimination on the basis of sex or from gender stereotypes; to do so would result in a false choice. Simply put, to allege discrimination on the basis of sexuality is to state a Title IX claim on the basis of sex or gender." The plaintiffs also allege sex and gender stereotype discrimination and retaliation under Title IX.
Thursday, January 7, 2016
As Equal Access and Non-Discrimination for LGBT Students Increases, So To Do Requests for Exemptions from Federal Law
The Human Rights Campaign's new report, Hidden Discrimination: Title IX Religious Exemptions Putting LGBT Students at Risk, reveals a new phenomena in education that is offsetting some of the gains praised here and elsewhere over the past year . As discussed often in the last six months on this blog, the Office for Civil Rights at the Department of Education has taken a firm stance on protecting LGBT students from sexual harassment and ensuring transgender students have equal access to restrooms and locker rooms. This has lead to high profile standoffs in Chicago and rural Virginia. OCR is winning that battle.
This new report, however, reveals a more "civil" battle occurring under the radar. Religious schools are seeking exemptions from Title IX's gender non-discrimination requirements. These exemptions are explicitly authorized by Title IX, which grants exemptions for religious based schools when compliance with the Act is inconsistent with their religious beliefs. The report finds:
- More than half of all states (26) have at least one school that has requested an exemption; • Schools in the South have requested the most exemptions;
- Schools that are affiliated with the Southern Baptist Convention requested the greatest number of exemptions, followed by schools affiliated with Wesleyan and Catholic churches;
- Almost a third of schools receiving a gender identity related exemption referred to the federal government’s groundbreaking Arcadia Settlement as a primary reason for requesting an exemption;
- 56 schools requested an exemption;
- 33 schools received an exemption from the law as it pertains to protecting students on the basis of gender identity;
- 23 schools also received an exemption from the law as it pertains to protecting students on the basis of sexual orientation; and
- Schools most commonly requested exemptions from provisions of the law relating to housing, access to facilities, and athletics.
As I teach my Education Law students each spring, Title IX, maybe more than any other law with which I have dealt, is riddled with contradictions. These contradictions are a result of Congress's unsuccessful struggle to reconcile cultural mores with gender equality. The religious exemption, while troubling in this particular context, is the least of those contradictions.
Tuesday, December 8, 2015
In October, I remarked that Palestine Illinois School District 211 was taking a particularly hard line stance against the Office for Civil Rights' (OCR) demand that the district permit a transgender student to use locker room facilities consistent with her gender. I wondered whether that stance might prompt OCR to accept some compromise resolution, given that the consequences of non-compliance would be enormous--$6 million--and affect a lot of innocent bystanders in the district. This, of course, is always a problem with Title VI and Title IX enforcement, as they amount to a very high stakes game of chicken when a district shows any significant level of resistance. Here, my assessment of both the district and OCR's resolve may have been mistaken. The district buckled last week, voting to grant the student equal access.
Hats off to OCR for standing firm. The final resolution here reminds me of the hard stances that OCR and DOJ took during desegregation, which forced districts to take integrative steps that they had long avowed they would not. It also reminds me that this progressive assertiveness has been a hallmark of OCR's enforcement over the past two years--whether it be in regard to gender, school discipline, or education resources.
Thursday, December 3, 2015
SC Attorney General Files Amicus Brief in Transgender Student's Appeal to Use Boys' Bathroom at School
In a suit that we have been following here and here, South Carolina Attorney General Alan Wilson has filed an amicus brief in G.G. v. Gloucester County School Board. The suit’s plaintiff, Gavin Grimm, is a transgender student who sued the school board about its policy that prohibited him from using the boys’ bathroom at Gloucester High School (VA). In September, the Eastern District of Virginia dismissed Grimm’s claim under Title IX. In the appeal to the Fourth Circuit, Attorney General Wilson filed an amicus brief on behalf of Arizona, Mississippi, South Carolina, West Virginia, and the Governors of Maine and North Carolina. The amici’s argument tracks the district court’s finding that Congress defines “sex” in Title IX as biological sex, not gender identity. Amici argue that that if “sex” means gender at birth, Grimm has access to girls' bathrooms and single-stall restrooms that are comparable to ones provided for boys, and thus, Grimm has no claim under Title IX. Although Grimm's driver's license identifies him as male, amici argue that because "G.G. has two X chromosomes," "female sexual and reproductive organs, and lacks the male sexual and reproductive organs," he should be considered biologically female and therefore was properly prohibited from using his school’s bathrooms designated for males. The Attorney General's brief can be viewed here.
Friday, November 13, 2015
As discussed on this blog, a family outside of Chicago is embroiled in a battle with their district over its treatment of their daughter, who is transgender. OCR has sided with the family, but the district will not back down. The family is now speaking out. Below is a shortened version of the anonymous letter published on the ACLU-Illinois' website. Get the full letter here.
. . . Our school district – Township District 211 – insists that students “of the opposite sex” should not be permitted in the girls’ locker room. For the record, we agree with District Superintendent Daniel Cates about not permitting students of the opposite sex in the locker room. But the inconvenient fact for Mr. Cates and his supporters is that our daughter is not “of the opposite sex.” She is a girl.
The District wrongly assumes what many who are not educated about the issue assume; that what makes a girl a girl and a boy a boy is simple anatomy. We believed this, until our daughter came along. Despite early signs – from as young as four, when she declared herself a girl, to the fact that she had mostly girlfriends growing up, played with dolls, begged to wear girls’ clothes, insisted on wearing a Hannah Montana wig while she danced around the living room and was heavily distraught over the male characteristics of her body – we were still shocked and ill-prepared when, at the end of seventh grade, our daughter again told us that she was a girl and had to live openly as one.
This is a difficult concept to grasp. However, just because something is difficult to understand, does not mean we should mock it or deny its existence. When we were struggling to understand, we sought out medical professionals, and support groups. Through this education process, we learned that gender extends beyond the sex a person is assigned at birth. We learned that scientific evidence has determined that gender is also determined by the brain’s anatomy, which is why the sexual characteristics assigned to many at birth are incongruent with their true gender identity. We also learned that one’s gender identity is different from one’s sexual orientation. Most importantly, we learned acceptance.
. . . .
In Junior High, our daughter was not permitted to use the girls’ restroom or locker room or to participate in girls’ sports. As a result, she was bullied on a daily basis. The emotional toll this took on her broke our heart and we vowed to do all we could to ensure she never had to endure this kind of abuse in High School.
We knew that a big factor in whether our daughter would be fully accepted by her peers was whether the High School would treat her as a girl in all respects. If she was segregated, forced to use separate facilities, it would signal to others that it was acceptable to treat her differently. To ensure our daughter would not be discriminated against, we legally changed her name, obtained a passport which correctly identified her gender as female, submitted medical records to the District which demonstrated she had been diagnosed with gender dysphoria and was receiving treatment for it including hormone injections.
Despite the overwhelming evidence that my daughter is a girl, the institution that is charged with educating and enlightening our children, was only concerned with her body. The District therefore did not allow her in the girls’ locker room and instead felt compelled to discipline her on several occasions after she did, in fact, dare to use the same facilities as every other girl. The result was devastating to her – there were times she was inconsolable and all we could do was hold her and tell her that we loved her and would continue to advocate on her behalf.
. . . .
The fact that neighboring school districts have managed to grant transgender youth access to the locker rooms which correspond with their gender identity without any issues only serves to highlight that District 211’s stated concerns are mere subterfuge for discrimination. The only real fear is that which my daughter faces now and probably will for the rest of her life – fear that she will never be truly accepted by society, fear that she will never get married and have a family and, most concerning, fear that she will be harmed by people who are threatened by her very existence.
. . . .
Tuesday, November 3, 2015
ED: School District's Continuing Refusal to Allow Transgender Student to Use Girls' Locker Room Violates Title IX
Last Friday Derek's posted about the federal government's amicus brief in support of a transgender's student request to use restrooms that were consistent with his or her gender identity. The Office for Civil Rights delivered the administration's position again yesterday when it told an Illinois school district that denying a transgender student access to facilities consistent with the student’s gender violated Title IX. OCR found that Township High School District 211 in Palatine, Ill., unlawfully denied a transgender student access to gender-appropriate school facilities in violation of Title IX. The district had offered a few alternate facilities to allow the student to dress for athletics and physical education classes, but all of the facilities involved isolating the student from the other female students in the school's locker rooms. The district placed the student in a single-occupancy bathroom to which the student had to walk past fitness and weight rooms when male students were present. Moreover, the student told OCR investigators, using the separate bathroom made her feel "ostracized." For its part, District 211 officials have said they allow transgender students to have access to the bathrooms of the gender they identify if there are stalls, but not to locker rooms where students are undressing. As Professor Sacha Coupet (Civitas Child Law Center, Loyola) summed up the district's position, "it's still a matter of opposite-sex body parts being in a gender-specific space." After the district tried other accommodations short of giving the student access to the female locker rooms, OCR and the district reached an impasse. OCR rejected the district's explanation that it separated the student to protect the privacy of other students. In its Nov. 2 letter, OCR gave the district thirty days to come up with a satisfactory solution or risk jeopardizing its federal funding. The OCR letter, courtesy of the Chicago Tribune, is here.
Friday, October 30, 2015
In September, a federal district court rejected the attempt of Gavin Grimm-a transgender student-to gain access to the boy's restroom in his public school in Gloucester County, Virginia. The district had previously allowed him to use the boy's restroom, but withdrew access after religious and other concerned groups raised objections. Grimm appealed the decision to the Fourth Circuit. Wednesday, the U.S. Departments of Education and Justice filed an amicus brief in support of Grimm. The argue in their brief that Grimm simply seeks "a benefit that every other student at this school enjoys: access to restrooms that are consistent with his or her gender identity. . . . Treating a student differently from other students because his birth-assigned sex diverges from his gender identity constitutes differential treatment on the basis of sex under Title IX."
The Office for Civil Rights at the Department of Education has already enforced this position in a few administrative complaints, but this may be the most visible and clear statement of policy to date.
Tuesday, October 13, 2015
This past year has brought a supreme court case in Maine, several complaints with the Office for Civil Rights, and federal litigation over transgender students' access to restroom and locker facilities. In all those instance, save the federal lawsuit, the student has won. The most significant current holdout, however, appears to be Illinois' largest school district, Palatine-based Township High School District 211. A transgender student there is seeking access to the girls' locker room. The district rejected her request. The district's explanation is that the "privacy rights of 12,000 students" outweigh the interest of the individual student seeking access. To permit a transgender student access would "infringe on the privacy of all the students that we serve," according to the superintendent. The ACLU assisted the student in filing a complaint over a year ago with the Office for Civil Rights. OCR responded that the district was violating Title IX, but the district still refuses to grant the student access. Most districts buckle after a negative finding by OCR. Now that this district has not, the question is whether OCR will be able to carve out some face-saving middle ground remedy or whether it will move toward the ultimate sanction of withdrawing federal funds.
Monday, September 14, 2015
Gavin Grimm has been fight with his school in Gloucester County, Virginia, for the past year to be able to use the boy's restroom. Gavin had previously been allowed to use the boys' bathroom, but when religious and other concerned groups discovered this, they came out in heavy opposition and the school board then banned his use of the boy's restroom.
In January, he filed an administrative complaint with the Office for Civil Rights at the U.S. Department of Education, arguing that his exclusion from the boy's bathroom violated Title IX. This summer he filed a complaint in federal district court. Just as school was to start this fall, the U.S. District Court denied his request for an injunction. Interestingly, it gave no rationale for the denial. It literally only said the court "hereby denies" and that "A memorandum opinion detailing the reasons for the denial will be forthcoming shortly."
Gavin is represented by ACLU attorneys, who say the will opinion the decision to the 4th Circuit. More here.
Tuesday, August 25, 2015
In 2012, Arizona law enacted legislation providing that “no school district or charter school in this state may endorse or provide financial or instructional program support to any program that does not present childbirth and adoption as preferred options to elective abortion.” This fall a sticker on the front of a biology textbook that promotes that agenda is raising eyebrows. Gilbert Unified School District placed this message on it biology textbooks:
The Gilbert Public School District supports the state of Arizona’s strong interest in promoting childbirth and adoption over elective abortion. The District is also in support of promoting abstinence as the most effective way to eliminate the potential for unwanted pregnancy and sexually transmitted diseases. If you have questions concerning sexual intercourse, contraceptives, pregnancy, adoption or abortion, we encourage you to speak with your parents.
The same group that pushed for this sticker was part of the push for the anti-gay legislation that made national news in Indiana, which brings us to anti-gay sex education in South Carolina.
Thursday, August 13, 2015
The New York State Department of Education has issued new guidance on creating supportive and safe learning environments for transgender and gender nonconforming students. This guidance is an implementation of both federal law and New York's newly enacted Dignity for All Students Act (“DASA”). The guidance explains:
Wednesday, July 15, 2015
Chicago Public Schools Enter Agreement with Office for Civil Rights to Ensure Equal Athletic Opportunities for Females
Last week the U.S. Department of Education announced that a settlement had been reached between its Office for Civil Rights and the Chicago Public School District #299 after the National Women’s Law Center filed their initial complaint back in 2010. The agreement mandates that the Chicago school system add athletic opportunities for females in at least 12 high schools in order to comply with Title IX (the anti gender discrimination law in education). The purpose of the agreement is to remedy the stark disparities between enrollment of female students and their participation in high school interscholastic athletics. In Chicago schools, females make up over 51 percent of the student population yet they only represent 41 percent of the districts’ athletes. Males are 58 percent of the athletes. The eleven page detailed settlement requires that the Chicago Public School District comply with the agreement at each District high school and sets up a standard the schools must meet.
Compliance at each high school will be measured by using the three-part test of compliance showing at each school that: 1) interscholastic participation opportunities are provided in numbers substantially proportionate to the respective enrollments of boys and girls; or 2) that the District can show a history and continuing practice of program expansion that is demonstrably responsive to the developing interests and abilities of the members of that sex; or 3) that the interests and abilities of the underrepresented sex are fully and effectively accommodated by the present program.
The agreement will go into effect as early as fall 2015 and the Office for Civil Rights will continue to monitor the District’s compliance closely thereafter.
Friday, June 12, 2015
Over the past year and a half, significant movement has happened at the state level to help expand rights for transgendered students seeking to use restrooms that conform to their gender, but somehow the issue had evaded the federal courts. Most notable at the state level, Nicole Maines fought and won a battle in the Maine Supreme Court, relying on the Maine Human Rights Act.
In January of this year, in an effort to federalize this issue, the ACLU filed an administrative complaint against Gloucester County Schools in Virginia on behalf of Gavin Grimm with the Office for Civil Rights at the U.S. Department of Education, presumably arguing that his exclusion from the boy's bathroom violated Title IX. OCR complaints, however, are private and little more than the notice of the complaint came to light at the time. Apparently, the complaint was not resolved to Gavin's satisfaction.
This does not mean that OCR was not on his side. The administrative process is heavily weighted on voluntary compliance, which recent news reports would suggest the School Board would have been unwilling to provide. Gavin had previously been allowed to use the boys' bathroom, but when religious and other concerned groups discovered this, they came out in heavy opposition, leading to an official school board vote banning his use of the boy's restroom. As a side note, it appears the public discourse surround this vote was despicable in its personalized and dehumanizing nature.
The case is now finally moving to federal court, where it is sure to receive enormous attention and set important precedent. See here for more.
Tuesday, May 12, 2015
Abigail Perdue, together with sociologists and psychologists, recently conducted a survey of 364 Virginia Military Institute (VMI) students. The study is now published as Abigail L. Perdue, Transforming "Shedets" into "Keydets": An Empirical Study Examining Coeducation Through the Lens of Gender Polarization, 28 Colum. J. Gender & L. 371 (2015). The goal of this study was to gather empirical data on the impacts of coeducation at the school. Professor Perdue "examine[s] the perceived impact of coeducation, perceptions of why members of the opposite sex attend VMI, pressures to conform to prescriptive gender stereotypes of how feminine or how masculine a cadet should be, and perceptions of an expected adverse reaction to perceived violations of gender boundaries." It has been fifteen years since VMI became coed in the wake of U.S. v. Virginia, and according to this study, many male cadets continue to regard female cadets as intruders rather than peers. As a result, "female cadets often employ gender strategies, such as emphatic sameness, to avoid accepting the demeaning status of feminine 'shedet' within VMI's androcentric and gender polarized environment." However, in doing so, many of these women may be inadvertently forfeiting part of their feminine gender identities. Therefore, Professor Perdue "explore[s] the potential impact of gender polarization . . . on the gender identities of female cadets at VMI by examining student attitude toward coeducation and their perceptions of possible gender boundary violations at VMI." The study utilized Sandra Lipsitz Bern's analytical framework, "which discusses three prisms through which men and women often view one another and the world: gender polarization, androcentrism, and biological essentialism." Gender polarization "refers to the separation of sex and gender into opposite poles representing masculine and feminine domains in order to interpret sex and gender differences," and biological essentialism "refers to the use of biology and science to 'legitimize the sexual status quo.'" In other words, biological essentialism is founded upon biological distinctions to explain the inherent dominance of men and why it is sometimes permissible, even necessary, to differentiate treatment of men and women.
Friday, May 1, 2015
The Office for Civil Rights has released its 2013-2014 report to Congress and the President. From my perspective, past reports have been dense and un-illuminating. This current one strikes a very different approach. First, it is very well written. Second, it is very well framed and organized. Third, and maybe most important, it is incredibly informative. Fourth, it is analytical. Fifth, it is visually appealing. Sixth, it implicitly suggests courses of action or concern. Overall, it presents as a study in the state of civil rights and equity in our nation's schools, rather than a bureaucratic account of the beans counted in the past two years.
May 1, 2015 in Bullying and Harassment, Discipline, Discrimination, English Language Learners, Equity in education, Federal policy, Gender, Racial Integration and Diversity, Special Education | Permalink | Comments (0)
Tuesday, April 21, 2015
A new report by the National Women's Law Center and the Poverty and Race Research Action Council, Finishing Last: Girls of Color and School Sports Opportunities, finds that
Nationwide, 40 percent of heavily minority schools have large athletics gaps for female students, compared to only 16 percent of heavily white schools. . . . [A]t both the state and national level heavily minority schools typically provide fewer sports opportunities—defined as spots on teams—compared to heavily white schools. Heavily minority schools also allocate these spots less equally between boys and girls, leaving girls of color especially shortchanged. This means that girls of color receive far fewer spots on teams than white girls, white boys and boys of color. The report shows how this lack of access to school sports has long-term consequences for girls’ health, academic success and economic security.
It breaks those numbers down further, showing that females at heavily minority schools have:
- Only 39 percent of the opportunities to play sports as girls at heavily white schools
- Only 67 percent of the opportunities to play sports as boys at heavily minority schools
- Only 32 percent of the opportunities to play sports as boys at heavily white schools
Get the full report and commentary here.
Thursday, April 2, 2015
In Marshall, Michigan, members of the high school's Gay-Strait Alliance recently put up a public display on a hallway bulletin board promoting promoting transgender equality. Their purpose, they say, was to let the LGBTQ community to know they are safe and accepted at school. School policy is to leave information on the bulletin board for two weeks.
Some parents, however, became aware of the bulletin board posting and began complaining to the administration. Shortly thereafter, the school took down the display, before the two weeks had transpired. Kate Samra, president of the Gay Straight Alliance at the high school, said she “met with the principal of my school today and he said he felt like the situation needed to be diffused, so that’s why he did take the board down.” Marshall’s superintendent, Randy Davis, also acknowledged that parental complaints played a role. “We have had complaints once in a while from a parent about that,” he said. “In our environment, it doesn’t feel like there’s any controversy at all; in the world of Facebook, it seems like it’s on fire.”
The bulletin board would seem to have been a public forum. If so, the school could only censor student speech if it created a substantial disruption or was lewd/plainly offensive. Schools cannot censor speech simply because it might generate uncomfortable speech. While we only have sparse facts, the school's intent seems to have been to avoid uncomfortable conversations with parents, not actual disruptions in school. There is no indication that the bulletin posting had caused any disruption within school, but taking it down has set of an entirely new conversation and students are now protesting. If the school thought censoring speech would diffuse the situation, they were mistaken. From the students' perspective, this also suggests a school that is potentially hostile to LGBTQ rights, which could come back to haunt the school should any Title IX harassment claims arise later.
Postscript: My colleague, Josie Brown, also pointed out that a bulletin board is technically part of the facilities and, thus, would be subject to the federal Equal Access Act, which prohibits discrimination in regard to individuals who are announcing or wishing to have meeting. See 20 USC 2071.
Thursday, February 19, 2015
Nearly two years ago, I posted on a bizarre case, Hill v. Madison County School Bd., 2013 WL 3712330 (N.D.Ala.,2013), in which a student had been sexually harassed by another on multiple occasions. The student apparently had harassed several other students as well. The school's solution was purported to catch the harasser in the act, so that it might exact a full punishment on him. Thus, two teachers convinced the plaintiff to agree to the harasser's proposition to meet him in the bathroom. They notified the principal of their plan. The plan, however, went awry because no one came to the bathroom in time. By the time the teachers arrived, the boy had already pulled down the girl's clothes and attempted to have sex with her against her will. She then filed a lawsuit against the district under Equal Protection, Title IX, Substantive Due Process, and state law.
The trial court rejected her claims. The case has finally made its way to the 11th Circuit Court of Appeals. Because the victim is no longer a minor and her identity has gotten out, the media coverage is beginning to heat up. CNN recently conducted an interview with the victim. As my prior post notes, the precedent on these types of cases is very unfavorable to plaintiffs. If every there were a case to create a crack in that precedent, however, this may be the one.