Prepared by David Buckel, with Lambda Legal Defense and Education Fund
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."
Sexual Harassment Guidance 62 Fed. Reg. 12039 (footnotes omitted). 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, below are some 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:
"Schools are required by the Title IX regulations to adopt and publish grievance procedures providing for prompt and equitable resolution of [Title IX] complaints . . . in the absence of effective policies and grievance procedures, if the alleged harassment was sufficiently severe, persistent, or pervasive to create a hostile environment, a school will be in violation of Title IX because of the existence of a hostile environment, even if the school was not aware of the harassment and thus failed to remedy it. This is because, without a policy and procedure, a student does not know either of the school's interest in preventing this form of discrimination or how to report harassment so that it can be remedied."
Next there is 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:
"A hostile environment can occur even if the harassment is not targeted specifically at the individual complainant. For example, if a student or students regularly directs sexual comments toward a particular student, a hostile environment may be created not only for the targeted student, but also for others who witness the conduct."
For more information on the new guidelines, call Lambda or 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