These sources of federal, state, and local laws can help school leaders continue to make schools safe spaces for LGBTQ students.
June 25, 2022 | By
Until recently, many of us thought the legal rights of LGBTQ students were settled. In 1996, conservative Judge Anthony Kennedy ruled that a Colorado effort to repeal state laws that protected gay and lesbian men and women was unconstitutional. In 2008, the United States Supreme Court effectively established the fundamental right to marriage for same-sex couples – a watershed moment for equal rights in our history.
It seemed, until recent events, that the march toward equal rights under the law for all, including LGBTQ students, could only go forward.
The times have changed.
Efforts to restrict rights
Today, many state legislators and local school boards have attempted to restrict the rights of LGBTQ students.
In 2021 and 2022, for example, Alabama (and other states) passed laws and policies that discriminate against transgender students for participating in sports or using restrooms that match their identity. of gender.
Other states have passed laws with the stated but dubious intent of preventing schools from “indoctrinating” students.
But state (and federal) legislatures can’t make the rules without some oversight. For now, we have a system of checks and balances. Other sources of law and branches of government can – and do – provide legal protections for LGBTQ student rights.
Sources of Law to Protect LGBTQ Students
Why is this important to you as school leaders? A—otherwise the—the most important duty you have is to ensure that students feel safe in your school and to promote the values of tolerance and appreciation of diversity, which are decidedly American concepts. You already know this, but saying it reminds us of your important role in ensuring our democracy through public education.
To that end, it is worth pointing out some important sources of law that (at least for now) provide you with means to fulfill this obligation. As I outline the basics, I draw your attention, in particular, to my discussion of the Equal Access Act and local school board policies that allow non-school groups to have space and time to meet in a school setting.
First, there is the US Constitution. Under the First Amendment, students enjoy protections related to their speech and expression, including expression related to their identity through their words or even their clothing (assuming there is no code reasonable dress).
At the same time, students who might attempt to harass students because of their identity — and then claim they have the “right to free speech” — are prohibited from doing so.
The 14th Amendment to the Constitution also provides certain protections. The equal protection clause of this amendment prohibits schools from treating students differently, and students should feel safe in schools. Students also have a constitutional right to privacy.
Federal laws could also provide protections for student rights, including (for now) Title IX. In 2021, the Supreme Court refused to hear (and potentially overturn) a court case in which a student successfully challenged a school district’s discriminatory “toilet ban” on the grounds that it violated the title. IX and the equal protection clause. We must proceed with caution in viewing Title IX as a lasting remedy, without further congressional amendments, because the Supreme Court may change its mind about the extent to which Title IX can be used.
An important federal law – the Equal Access Act – can be used by students and advocacy groups to ensure your school can provide a safe space for LGBTQ allies and students. In short, the law prohibits schools receiving federal funds from prohibiting a group of students from meeting during non-teaching hours at a school because a school district or official disagrees. with the group’s point of view.
It is important to note that while this law applies specifically to high schools (which may include middle grades in some states or districts), many school districts have used it (along with the constitutional principles) to develop policies. access to local facilities for the use of everything its schools by the public.
Concretely, what does this mean for you, as a headteacher? Basically, if you allow different groups to use your facility (in legalese, creating a “limited public forum”), you cannot discriminate against any group because of their religious or political beliefs.
For example, if the group “Students and Citizens for Atheism” uses the school space outside of school hours (e.g. before, after school, or perhaps during lunch), then you must allow the “Students and Citizens for God” group (the two hypothetical groups) the same access.
So groups that create safe spaces for students LGBTQ students and their allies, such as the LGBTQ Alliance groups, may be able to meet at your school. I’m simplifying, but the advice is this: check your school’s and district’s facility use policy to see if your school can be used by groups that provide appropriate support to LGBTQ students and allies. In addition to offering support to students, these groups have been successful in organizing important public forums that promote appreciation of diversity and unity.
National and local laws
State laws also protect students. They vary by state, but many have anti-discrimination laws that protect teachers, as well as students.
In addition to the local school policies outlined above, school boards have adopted policies to prevent discrimination, bullying and harassment.
I would be lying to you if I said I’m not worried. The wave of laws recently passed that discriminate or promote intolerance is anachronistic to the fundamental tenets of our democracy, such as faith in the protection of individual freedoms.
But I’m also hopeful. Efforts to discriminate against student rights based on gender or identity only remind us that our work is not done. And, fortunately, we still have federal and state laws that can help us.
Mark Paige is a former school law attorney who has represented school districts in federal and state legal cases and current department chair and professor of public policy at the University of Massachusetts-Dartmouth.
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