Sexual Orientation and the Law Blog

Anti-Bullying Law

Kansas lawmakers passed a law "requiring schools to adopt policies prohibiting bullying on school property or vehicles and at school-sponsored activities. The law, which goes into effect Jan. 1, also requires districts to implement anti-bullying plans that include training and education for staff and students."  See The Wichita Eagle, Taking a Stand Against Bullying (12/3/07).

Student bullying is often aimed at LGBT youth, who are just starting (in many cases) to learn about their own sexual orientation.  It is crucial to protect all students from bullying during their developmental years, when such name-calling and harassment can negatively stunt emotional development.

This law is a step in the right direction.  As the National Center for Lesbian Rights makes clear, a school might be held liable under state and federal anti-discrimination laws for failing to prevent or stop bullying against LGBT youth.  See NCLR's Publication entitled "Fifteen Expensive Reasons Why Safe Schools Legislation is in Your State's Best Interest" (noting that in a sampling of 15 cases brought against school districts for failing to protect a child against sexual orientation discrimination, the school district either settled out of court or lost at trial).

Thus, guidance from the state legislature regarding appropriate non-discrimination policies is very helpful in avoiding potential liability and protecting our youth (which is, in and of itself, a worthy goal).

-SRB

Post-Fair II: Second Circuit Denies Yale's Academic Freedom Claim

On Sept. 17, 2007, the Second Circuit issued a post-Fair II opinion dealing with stayed first amendment claims relating to academic freedom and freedom of association.  Yale professors claimed that it violates their first amendment rights to academic freedom and association to force the school (with the threat of federal funding withdrawal) to allow military recruitment on campus despite the school's non-discrimination policy.  Burt v. Gates, 2007 WL 2694439 (2d Cir. Sept. 17, 2007).

Obviously, the second issue, freedom of (dis)association, was clearly answered in the Fair II case.  However, the Supreme Court did not directly address the "academic freedom" claim.  Id. at *5. The Second Circuit notes that the Supreme Court was obviously aware of the claim, though, and would have rejected this argument. Id. at *5, 7 (noting that the Fair II court plainly rejected the argument that the Solomon Amendment requires the petitioners to associate with the military--thus, they may also freely "disassociate themselves from the recruiters by words and deeds.").

Thus, the Second Circuit addressed the claim of Yale professors (including the Dean of Yale Law School) that forcing the school to permit military recruitment on campus hinders academic freedom by stifling their "commitment to equal justice among their students, ensuring a diverse student body, and helping students frind appropriate careeers[.]"  Id. at *5.  The Second Circuit rejected this claim because "[t]he relationship between barring military recruiters and the free flow of ideas is . . . attenuated."  Id. at *6.  The court notes that nothing in "The Solomon Amendment [restricts] the content of teaching, the membership of teachers in organizations, the selection of students, or evaluation and retention of students."  Id.

First, yes, the Supreme Court would probably reject this claim.  Id. at *2 (noting that the Fair II decision was unanimous).  Especially due to the plain language of the Fair II case.  Forum for Academic & Inst. Rights v. Rumsfeld, 544 U.S. 1017, 1307 (2005) (noting that the Solomon Amendment regulates "conduct, not speech" and "affects what law schools must do-afford equal access to military recruiters-not what they may or may not say.").  However, I still think it is worthwhile to think these claims through, as the right to academic freedom is central to the purpose of any educational institution.

Although the Solomon Amendment does not restrict the content of teaching (professors may express their opinions without restraint), it certainly restricts the ability of the professors to promote an environment conducive to learning, which, after all, is the most important function of an institution of higher learning.  One of the keys to effective teaching on any college campus is the inclusion of diverse viewpoints.  See Grutter v. Bollinger, 539 U.S. 306, 328-29 (2003).  By permitting the military to recruit on campus with a restrictive "don't ask, don't tell" policy, the school (along with its professors) contradicts its own message.  Academics cannot express their commitment to diversity fully with the presence of discriminatory military recruiters.  Thus, when individual professors discuss their commitment to an open and respectful classroom environment, students (particularly LGBT students) may feel that this message is insincere or untruthful due to the contradictory message conveyed by the presence of miliary recruiters on campus.    The presence of military recruiters on campus hinders the message of those professors and academics who seek to create an atmosphere of inclusion inside their classrooms and on campus in general. 

Attenuated?  A bit.  But, must a school-wide policy literally bind the mouths of the professors in order for them to present a valid academic freedom claim?  Or, can one demonstrate an academic freedom claim when the government undermines one of the key messages the professors intend to convey in the classroom?  Also, what is the point in seeking to recruit a diverse student body if one cannot then promote an environment conducive to the expression of multiple viewpoints?  In other words, unless the diverse student body feels comfortable, the students will not participate in classroom discussions and debates--defeating the "compelling interest" of diversity on campus.

-SRB

Recent Title IX Gender Stereotype Bullying Case

In Seiwert v. Spencer-Owen Community School Corp., 2007 WL 2020174 (S.D. Ind. July 6, 2007), a federal district court denied a school's motion for summary judgment on a Title IX claim based on a theory similar to the one utilized by the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)(a Title VII case).

Title IX of the Education Amendments of 1972 protects students from sex-based discrimination in public schools.  In order to recover, a plaintiff must demonstrate that the school was "deliberately indifferent to sexual harassment, of which they [had] actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to [have deprived] the victims of access to the educational opportunities or benefits provided by the school."  Seiwert, 2007 WL 2020174, at *7 (citing Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 650 (1999)).

The Seiwert plaintiff is an eighth grade student who was harassed by other students during a two-year period.  Id. at *1.  The plaintiff presented evidence that he suffered from teasing and homosexual epithets as well as physical abuse and, ultimately, death threats from students at the school.  The plaintiff and his parents reported the bullying to the principle of the school, who did not intervene to discipline the offending students.  The bullying culminated in a fight on a school bus and the plaintiff's ultimate decision to enroll in a private school.  Id. at * 4.

The court refused to dismiss the case at the summary judgment stage because, in the court's own terms, "[b]eing called outrageous names, physically assaulted, and having one's life threatened is severe and pervasive behavior."  Id. at * 7.  Perhaps the most interesting part of the case, however, is the court's next inquiry:  "whether this harassment amounted to sexual harassment prohibited by Title IX."  Id.

In a fashion analogous to the Price Waterhouse case, the court determined that the plaintiff could maintain a cause of action for sexual harassment where, "he was being harassed--not because he was homosexual, but because he was acting in a manner that did not adhere to the traditional male stereotypes."  Id.  In essence, the court stated that the plaintiff could assert his Title IX claim if he could show that the other students thought that he was a homosexual and did not conform to the traditional view of "masculine" behavior.  In this manner, he was discriminated on the basis of his failure to fit into traditional "gender" categories, not because of his sexual orientation.

The case includes other interesting claims, such as equal protection (applying the Nabozny ruling which held that sexual orientation is a protected class, but only requires rational basis review), breach of contract (because the plaintiff was a third-party beneficiary of the school's contract with an independent bus driver), negligent supervision, and negligent infliction of emotional distress--all of which survived summary judgment as well. 

-SRB