New Title IX Guidelines Released

David Buckel of Lambda Explains Implications of the federal statute that bars anti-gay harassment in schools In March of 1997, the Office of Civil Rights for the U.S. Department of Education released new guidelines for educators on Title IX, the federal statute that bars sex discrimination in public schools that receive federal funding. For the first time, these guidelines make clear that one form of anti-gay harassment in schools - namely harassment that creates a sexually hostile environment - is illegal under Title IX.

Although Title IX does not prohibit discrimination on the basis of sexual orientation, sexual harassment directed at gay or lesbian students may constitute sexual harassment prohibited by Title IX. For example, if students heckle another student with comments based on the student's sexual orientation (e.g., "gay students are not welcome at this table in the cafeteria"), but their actions or language do not involve sexual conduct, their actions would not be sexual harassment covered by Title IX. On the other hand, harassing conduct of a sexual nature directed toward gay or lesbian students (e.g., if a male student or a group of male students target a lesbian student for physical sexual advances) may create a sexually hostile environment and, therefore, may be prohibited by Title IX. It should be noted that some State and local laws may prohibit discrimination on the basis of sexual orientation. Also, under certain circumstances, courts may permit redress for harassment on the basis of sexual orientation under other Federal legal authority. As an example of alternative protections under federal law, the guidelines cite Lambda's school harassment case, Nabozny v. Podlesny, 92 F. 3d 446 (7th Cir. 1996), where we used federal equal protection law to challenge public school officials' failure to take action against anti-gay abuse in a school, resulting in a near-million dollar recovery from the officials.

Title IX is a federal statute taken very seriously by educators around the country, because it can be a basis for legal liability for schools (and payment of monetary damages), either through complaints to the Office of Civil Rights ("OCR") or in court. Accordingly, it is likely that educators in general will now consider anti-gay harassment more seriously than in the past. The bottom line is this: there are different sources of law to challenge anti-gay harassment in general in schools, but where the harassment is specifically "of a sexual nature," it may be illegal under Title IX and the school may be liable for monetary damages.

While consultation with the statute itself and the entire set of guidelines is necessary to fully understand Title IX's requirements, I'd like to share a few thought-provoking excerpts from the guidelines. First, the guidelines emphasize the need for each school to expressly identify for students that they may be able to file a complaint regarding sexual harassment, which now expressly includes anti-gay sexual harassment. Second, there is also language about how the school may be liable even with regard to the witnesses of anti-gay sexual harassment, such as the gay friends or peers of a targeted student. Readres are advised to consult the guidelines to fully understand these and other points. For more information, call the Office of Civil Rights at 1-800-421-3481, or visit the website for the guidelines through http://www.ed.gov/offices /OCR/ocrpubs.html.

-- David Buckel successfully prosecuted the landmark Nabozny v. Podlesny case in which Jamie Nabozny won the first-ever lawsuit on anti-gay harassment in public schools. [4/97]