Following are summaries of fifteen cases that have been brought against school districts for failing to protect students from discrimination on the basis of sexual orientation. These cases illustrate the following:
- School districts can be held liable under existing federal law for failing to protect students from harassment based on sexual orientation and gender nonconformity.
- Without clear directives from their state legislature, many school districts have failed to protect students from harassment and discrimination, putting themselves at risk for potential legal liability.
- In all of the cases brought to date, the student either prevailed after trial or achieved a settlement.
STATE LEGISLATION PROTECTS STATES, SCHOOL DISTRICTS AND STUDENTS
At a time in which fiscal discipline is critical to preserve statewide education priorities, the cost of avoidable lawsuits against a school district for failing to protect their students from anti-lesbian, gay, bisexual and
transgender (LGBT) harassment and discrimination can hinder both school district and state budgets. Passing, effectively implementing, and enforcing state laws that clearly prohibit discrimination and harassment on the basis of real or perceived sexual orientation and gender identity can help school districts avoid these expensive lawsuits. It can also help districts in fulfilling their general mission -- to provide a safe and effective education for all of their students.
SCHOOLS' EXISTING OBLIGATIONS UNDER FEDERAL LAW
- Whether or not a state or a school district has an LGBT-inclusive law or policy, all public schools have obligations under federal law to protect students from anti-LGBT harassment and discrimination. The growing list of cases, some of which are included below, explicitly illustrate this point.
- A school district and its employees may be held liable under the Equal Protection Clause of the federal Constitution for failing to protect students from anti-LGBT harassment. If a school official fails to take action when they learn of such harassment because they think that an LGBT student should expect to be harassed, or that the student provokes the harassment by being openly LGBT, then the school has failed to provide equal protection to the student. Likewise, school officials violate the Equal Protection Clause if they fail to provide the same level of protection against harassment to boys and girls, and to LGBT students and non-LGBT students.
- In addition, Title IX, a federal law that applies to all schools that receive federal money, already requires schools to ensure that students are not sexually harassed. While Title IX does not explicitly prohibit discrimination on the basis of sexual orientation, it does prohibit harassment directed at an LGBT student that is sexual in nature. Title IX also prohibits harassment based on perceptions that a student does not conform to stereotyped notions of masculinity and femininity.
FOR MORE INFORMATION ON CRAFTING EFFECTIVE STATE LAWS:
Effective guidance from the state legislature can help to ensure that schools and school districts meet their obligations under federal law, avoid costly and unnecessary lawsuits, and provide educational environments where all students can learn. The Gay, Lesbian and Straight Education Network and the National Center for Lesbian Rights, can help.
SUITS AGAINST SCHOOL DISTRICTS FOR
DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION
Below is a sampling of fifteen cases that have been brought against school districts for failing to protect students from discrimination on the basis of sexual orientation. These cases illustrate several important points:
- In all of the cases, the student either prevailed after trial, or achieved a settlement.
- School districts have paid anywhere from $40,000 to over $1.1 million in settlements or judgments.
- These settlement figures do not include the legal costs of a lawsuit. In many cases, the attorney's fees were far greater then the amount of the settlement itself.
- Many of these lawsuits were brought and successfully won or settled in states that do not have state statutes prohibiting discrimination on the basis of sexual orientation, including lawsuits in Kentucky, Missouri, and Nevada.
RESOLVED CASES
CASE: Flores v. Morgan Hill Unified School District (N.D. Cal.)
FACTS: Suit brought on behalf of 6 former MHUSD students who were subjected to daily harassment and threats of physical violence and actual physical violence on the basis of their real or perceived sexual orientation and gender.
CLAIMS: Equal Protection Clause, Title IX, state law claims
RESOLUTION: Settled in 2003
MONETARY: $1.1 million
INJUNCTIVE:
- Amendment of existing nondiscrimination policy to include sexual orientation and gender identity
- Training for all administrators, teachers, counselors, and other employees who monitor student behavior on harassment and discrimination on the basis of sexual orientation or gender identity
- Mandatory training for seventh and ninth graders on preventing LGBT harassment and discrimination
- District policies and student handbooks will be revised so that they expressly state that harassment and discrimination based on actual or perceived sexual orientation and gender identity is expressly prohibited under district policies and state law
- The district must keep written records of any complaints made concerning LGBT harassment or discrimination.
CASE: Massey v. Banning Unified School District (C.D. Cal.)
FACTS: Eighth grade student alleged she was prohibited from attending physical education class on the basis of her sexual orientation.
CLAIMS: Equal Protection Clause; state law claims (including AB 537 and Unruh Act)
RESOLUTION: Settled in 2003
MONETARY: $45,000
INJUNCTIVE:
- Amendment of existing nondiscrimination policy to include sexual orientation and gender
- Training for all district teachers and other school staff on issues of anti-discrimination and diversity
- Training for students at all grade levels -- k-12 -- with respect to diversity
CASE: Henkle v. Gregory, 150 F. Supp.2d 1067 (D. Nev. 2001)
FACTS: Constant harassment, discrimination, intimidation based on his sex and sexual orientation, name calling, assaults, punched in face, lassoed around the neck, threatened, transferred from school to school and told to keep silent about his sexual orientation, put into adult education program
CLAIMS: Title IX, Equal Protection Clause, First Amendment, state tort claims
RESOLUTION: Settled in 2001
MONETARY: $451,000
INJUNCTIVE:
- Adoption of new harassment policy including sexual orientation required
- Staff training required
- Student training required
CASE: Loomis v. Visalia Unified School District (E.D. Cal.)
FACTS: Verbal harassment and name calling by teachers and students, spit on in hallway, put in independent study program (thereby losing ability to attend any U.C. school), subjected to sexually suggestive touching
CLAIMS: Equal Protection Clause, Due Process Clause, state law claims, including AB 537
RESOLUTION: Settled in 2002
MONETARY: $130,000
INJUNCTIVE:
- Required training for school staff, including a one-time 3 hour program, and 30 minute annual training
- Required training for students, including a mandatory 50 minute training
- Required to integrate peer-to-peer education and counseling into existing programs
- Required to revise anti-harassment policy to include real or perceived sexual orientation and gender.
- Required to have two compliance coordinators at each school, one male and one female (although only one required for elementary schools)
- Required to submit an annual report
CASE: Dahle v. Titusville (Pa.)
FACTS:
CLAIMS: Severely tormented based on sexual orientation, daily verbal and physical assaults over 5-year period. Harassment was so traumatizing that the student attempted suicide. Equal Protection Clause, Title IX
RESOLUTION: Settled in 2002
MONETARY: $312,000
CASE: Theno v. Unified School District 464, Tonganoxie (Ks.)
FACTS: Student was verbally harassed based on the assumption that the student was gay. Administration ignored complaints and failed to take action. Student eventually was forced to leave school.
CLAIMS: Title IX
RESOLUTION: Settled in 2005
MONETARY: $250,000
CASE: Putman v. Board of Education of Somerset Independent Schools (E.D. Ky.)
FACTS: Death threats, repeated unwanted sexual contact, offensive and hostile verbal abuse, sexual intimidation and humiliation including sexually explicit graffiti on school parking lot depicting 2 male figures engaged in sexual act with plaintiff's name above picture.
CLAIMS: Title IX; Equal Protection Clause
RESOLUTION: Settled in 2001
MONETARY: $135,000
INJUNCTIVE:
- Amend anti-harassment policy to include actual or perceived sexual orientation.
CASE: Montgomery v. Independent School District, 109 F. Supp.2d 1081 (D. Minn. 2000)
FACTS: Name calling based on his perceived sexual orientation from K thru 10th grade, physical threats and assaults beginning in 6th grade, mock rapes, unwanted sexual contact from 9th grade
CLAIMS: Title IX; Equal Protection Clause, Due Process Clause, state law claims
RESOLUTION: Settlement
MONETARY: undisclosed financial settlement
INJUNCTIVE:
- District required to enforce anti-harassment policy
CASE: Ramelli and Donovan v. San Diego School District (Ca. 2000)
FACTS: A litany of events, including physical abuse by other students, verbal threats, name calling, shoving in halls, punching, kicking, and property vandalized. Plaintiffs were harassed with the knowledge of school officials who did not take timely corrective action.
CLAIMS: Title IX
RESOLUTION: Settled in 2005
MONETARY: $300,000
CASE: O.H. v. Oakland, 2000 WL 33376299 (N.D. Cal. 2000)
FACTS: Harassment, intimidation, physical abuse because of perceived sexual orientation, raped 3 times by another student who forced him to leave campus at knife point
CLAIMS: Title IX; Equal Protection Clause; Due Process Clause; state law claims
RESOLUTION: Settled in 2000
MONETARY: undisclosed, confidential monetary amount
INJUNCTIVE: no
CASE: Lovins v. Pleasant Hill (W.D. Mo.)
FACTS: Plaintiff was harassed from 8th grade through 11th grade based on real or perceived sexual orientation. Plaintiff was assaulted, and was eventually forced to leave school because of harassment and discrimination.
CLAIMS: Title IX, Equal Protection Clause
RESOLUTION: Settled in 2000
MONETARY: $72,000
INJUNCTIVE:
- Required training for school staffRequired to include student training in the curriculum
- Required to revise harassment policy, and to hire expert to implement other appropriate policies
- Required to have two coordinators at each school, one male and one female
- Required to submit number of comprehensive reports
CASE: Shaposhinikov v. Pacifica School District (Ca.)
FACTS: Twelve year old student harassed and physically abused for being perceived as gay because of his extra-curricular interests in dancing. Father filed several complaints with administrators, but no action was taken.
CLAIMS: Title IX
RESOLUTION: Settled in 2003
MONETARY: $100,000
INJUNCTIVE:
- Sensitivity training to all district personnel.
CASE: Vance v. Spencer, 2000 WL 1651376 (6th Cir. 2000)
FACTS: Harassed, teased, called "German gay girl," and "Lezzie," constantly shoved into walls and books and homework taken, unwanted sexual contact + and questioning in class, stabbed in hand with pen, students ripped her shirt off, another threatened to rape her and took his pants off before another intervened
CLAIMS: Title IX, National Origin Discrimination claim
RESOLUTION: Jury award in 2000
MONETARY: $220,000
CASE: Iverson v. Kent
FACTS: Plaintiff was pushed into lockers with broom sticks, called names, teacher told him "I already have 20 girls, I don't need another," beaten by 8 students in classroom while 30 students watched
CLAIMS:
RESOLUTION: Settled in 1998
MONETARY: $40,000
INJUNCTIVE: Required training for teachers and administrators
Required to revise anti-harassment training procedures
CASE: Nabonzy v. Podlesny, 92 F.3d 446 (7th Cir. 1996)
FACTS: Harassment and physical abuse because of sexual orientation and sex, mock rape in front of 20 students, urinated on, put in special education, beaten by 8 students causing internal bleeding
CLAIMS: Equal Protection Clause; Due Process Clause
RESOLUTION: Settled in 1996
MONETARY: $962,000
