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Slide1
Know Your Rights: LGBTQ Student Civil LibertiesSlide2
American Civil Liberties Union of Southern California
The American Civil Liberties Union is a national organization est. 1927
Work to defend and preserve the rights of all people, as guaranteed by the Constitution and laws of the United States.
Our mission is to defend civil liberties and rights in the U.S.
Active in a wide variety of issues (Workers’ Rights, Immigrants’ Rights, Privacy, Economic Justice, Racial Justice, Human Rights, etc.)
Over 500,000 members, active in all 50 states that help support our workSlide3
Legal Disclaimer
The topics we will discuss today are basic rights pertaining to students. While I’m not a lawyer and cannot give legal related advice or answer individual legal questions, I will be talking about how to protect yourself and your students. If there are specific legal questions, feel free to contact me either after the presentation or via email.Slide4
Bullying and Harassment at School
Homophobic remarks and harassment throughout the school day can cause LGBTQ youth to feel disrespected, unwanted, and unsafe
The National School Climate Survey found that
8
out of 10 students hear anti-LGBT language
frequently (2011)
Source:
GLSEN - “National School Climate Survey” (2011)Slide5
School Climate Today
Biased Remarks at School
84.9% of students heard
“gay” used in a negative way
frequently or often at school and 91.4% reported that they felt distressed because of this language
56.9 % of students reported hearing homophobic and
negative remarks
about gender expression from
teachers or other school staffSource: GLSEN - “National School Climate Survey” (2011)Slide6
School Climate Today
Safety and Victimization at School
6 out of 10 students felt
unsafe
because of their sexual orientation
4 out of 10 students felt
unsafe
because of their gender expression6 out of10 students who were harassed or assaulted in school
did not report the incident to school staff4 out of 10 students who did report an incident said that school staff did nothing in responseSource: GLSEN - “National School Climate Survey” (2011)Slide7
School Climate Today
Absenteeism
3 out of 10 students missed at least one entire day of school in the past month because they felt unsafe or uncomfortable
Students who experience high levels of victimization were more likely to miss a day of school in the past month
3 times as likely for sexual orientation
2 times as likely for gender expression
Source:
GLSEN - “National School Climate Survey” (2011)Slide8
One Thing You Would Like to Change Right Now
LGBT Youth
Understanding/tolerance/ hate
My parents/family situation
Where I live/who I live with
Non-LGBT Youth
Money/debt/finances
Appearance/weight
Improving mental healthSource: HRC - “Growing Up LGBT in America” (2012)Slide9
Most Important Problem Right Now
LGBT Youth
Non-accepting families
School/bullying problems
Fear of being out or open
Non-LGBT Youth
Classes/exams/grades
College/career
Financial pressures related to college or jobSource: HRC - “Growing Up LGBT in America” (2012)Slide10
School Climate Today
Solutions:
Gay-Straight Alliances
Inclusive Curriculum
Supportive Educators
Comprehensive Bullying/Harassment Policies
Source:
GLSEN - “National School Climate Survey” (2011)Slide11
School Climate Today
Students in schools with these solutions report:
Hearing fewer homophobic remarks
Have staff that intervened upon students’ behalf when hearing homophobic remarks
Feeling safer at school
Are physically and verbally harassed at lower rates
Missed fewer days of school
Greater sense of connectedness with school community and students
Source: GLSEN - “National School Climate Survey” (2011)Slide12
Freedom of Speech
First Amendment
U.S. and CA Constitutions apply on campus
The First Amendment protects the Freedom of Speech
Particularly important for minority groups with “unpopular” viewpoints
Gay Pride Parades
Transgender Day of Remembrance
Day of Silence
Harvey Milk DaySlide13
Freedom of Speech
Guarantees students the right to speak our minds, including LGBTQ issues, regardless of public opinion
Censorship of pro-LGBTQ messages is not allowed solely on the basis of it being controversial, inappropriate for minors or just morally wrong
Allows students to share their stories, be who they are, and build public support for LGBTQ equalitySlide14
Freedom of Speech
Applies in many different contexts
Freedom To Be “Out”
Courts have found that this is NOT inherently sexual
Freedom To Discuss LGBTQ Issues
Class Projects
Book Reports
T-shirts
ArmbandsButtonsBulletin BoardsSlide15
Freedom of Speech
Limitations
A student may NOT:
Substantially disrupt class time or the school environment
Incite others to break the law or school rules
Say obscene things
Discussion of LGBT issues is not obscene
Make false statements of fact (versus opinion) about another person (i.e. defamation)Slide16
Freedom of Expression
First Amendment
Attending school dances with a same-sex partner
Gender expression
Expression vs. Dress Code Policies
No filtering of internet sites that have pro-LGBT messaging
Some schools have filters that label it as “sexual content” because it says “LGBT”Slide17
Freedom of Assembly
First Amendment also protects your Freedom of Assembly
The Federal Equal Access Act
Went into effect in 1984
Federal law requires school to allow the GSAs
Only if non-curriculum clubs are allowed to exist and meet on school property
Must provide the same access to meeting space, budget allocations, ability to post flyers, public announcements
Schools may not treat a GSA any differently than any other non-curriculum based school clubs
Source: Title 20, United States Code, § 4071Slide18
Right to Privacy
Outing
Students have a right to privacy, which includes the right to keep information about their sexual orientation private
School officials may NOT tell a student’s parents without their consent, even if the student is “out” on campus except with a compelling justification
School officials may NOT use a student’s sexual orientation to manipulate students in any waySlide19
Right to Unbiased & Inclusive Curriculum
Fair Accurate Inclusive Respectful Education (FAIR) Act (SB 48)
Went into effect January 2012
Includes historical LGBT people and people with disabilities in K-12 social sciences through age-appropriate curriculum
Source:
CA Ed Code 51204.5, 51500, 51501, 60040, & 60044Slide20
Right to Unbiased & Inclusive Curriculum
The California Comprehensive Sexual Health and HIV/AIDS Prevention Education Act (SB 71)
Went into effect in 2004
Replaced confusing and contradictory statutes on sex education
All public schools must teach HIV prevention education
If public schools choose to teach sexual education, it must be comprehensive, medically accurate, objective, age-appropriate and bias-free
This excludes abstinence-only education and religious doctrine
More specific content requirements kick in, starting in 7
th gradeEducators cannot present information that is biased against LGBT peopleSource: CA Ed Code 51930 – 51939Slide21
Right to Healthcare
Students 12 years and older have the right to leave school to seek confidential medical services. Sensitive services can include but are not limited to:
HIV or Sexually transmitted infection (STI) testing
Mental health or counseling services
Drug or alcohol treatment/ counseling
Abortion care
Obtaining birth control
Schools must excuse students for confidential medical services without the consent or notification of the student’s parent
Schools must excuse absences related to having medical services rendered. Teachers must allow students to make up all assignmentsSource: CA Ed Code 48205, 46010.1 (plus a panoply of state laws and cases)Slide22
Right to Be Free From Harassment
Students are protected on the basis of:
Sexual orientation
Gender, gender identity and gender expression
Actual or perceived membership
Association with people with any of the protected characteristics
Schools must have a uniform nondiscrimination standards to ensure that students, teachers and school administrators understand the protections in California schools
Source:
CA Ed Code 200-220Slide23
Right to Be Free From Harassment
Seth’s Law (AB 9)
Went into effect July 1
st
, 2012
New California state law strengthens existing state anti-bullying laws
Requires teachers and other school personnel to intervene when safe to do so
Source:
CA Ed Code 234, 234.1, 234.2, 234.3 & 234.5Slide24
Right to Be Free From Harassment
Bullying: Alternative Discipline (AB 1729)
Went into effect January 1
st
, 2013
New California law requires administrators try alternatives before suspension, except for certain serious offenses
Including referrals to counselors and guidance teams, positive behavioral support and restorative justice
Source:
CA Ed Code 48900 & 48900.5Slide25
School Climate & School Discipline
LGBTQ Youth are often punished inconsistently and disproportionately
Punitive discipline policies often remove youth from the education environment (“exclusionary discipline”)
Few opportunities for Positive Behavior Intervention Systems (PBIS) and/or Restorative JusticeSlide26
Current Representation
Approximately 300,000 LGBTQ youth are arrested and/or detained each year of which 60% are black or Latino
LGBTQ youth make up 5-7% of the national youth population and 13-15% of those in juvenile detentionSlide27
Zero Tolerance Policies
Zero tolerance policies require schools to suspend or expel students for violating rules, no matter what extenuating circumstances there might be
Zero tolerance policies are often put in place in response to the failure of school districts to address the problem of anti-LGBTQ bullyingSlide28
Zero Tolerance Policies
Why don’t Zero Tolerance policies help protect LGBTQ students?
They don’t improve school safety or climate
They don’t stop students who bully from bullying
They are used against LGBTQ students more than straight studentsSlide29
Zero Tolerance Policies
LGBTQ students sometimes
engage
in bullying behavior as a “defense” or “survival” mechanism
.
Often reflects institutionalized
biasSlide30
Other Means of
P
ush-out
Willful Defiance
Truancy/School-based arrests
High stakes testing
“
Outing
” Foster Care and HomelessnessSlide31
Right to Be Free From Harassment
School Success and Opportunity Act (AB 1266)
Goes into
effect January 1
st
,
2014
Clarifies existing state nondiscrimination laws that prohibit discrimination on the basis of gender, gender identity and gender expression
Clarifies that it applies to programs, activities, and facilities that are separated by genderSource: CA Ed Code 220, 221, 234.1Slide32
Right to Be Free From Harassment
CA law is designed to protect LGBTQ students and holds schools and school officials liable for failing to do so
Students DO NOT have to put up with being bullied
Schools are required to protect against harassment
They may NOT ignore it
They may NOT say it should be expected
They may NOT say they didn’t know they had to protect studentsSlide33
Right to Be Free From Harassment
Students may NOT be harassed for:
Being LGBTQ
Being perceived as LGBTQ
For being friends with LGBTQ people
For having LGBTQ family members
For dressing in any particular gender nonconforming clothingSlide34
Education Code Mandates
Nondiscrimination Policy
Adopt a policy that prohibits discrimination, harassment, intimidation, and bullying
Uniform Complaint Procedures
Adopt a process for receiving and investigating complaints of discrimination, harassment, intimidation, and bullyingSlide35Slide36
Uniform Complaint Form
California Department of Education mandated form
All school districts must have this form
If the district has a specific form for their district, complainants should use the one provided
If the district does not have one, use the CDE’s
Where to find the UCF
Ask the school
Ask the district
Check the website (school, district, etc).Slide37
Tips for Filing a Complaint
Any student, parent or interested-third party can file a complaint
A complaint may be filed anonymously
Have someone from the school or district sign and date the form
Ask for a solution
Mark in your calendar the timeline
Do NOT use
Williams
formDo NOT use employee discrimination formSlide38
Enumerated Categories
Disability
Gender
Gender identity
Gender expression
Nationality
Race or Ethnicity
Religion
Sexual orientationActual or perceived membershipAssociation with a person or groupSlide39
Publicity of Policies
Associated Student Body room
Teacher’s Lounges
Classrooms
Student/Parent Handbooks
School/District WebsitesSlide40
ScenariosSlide41
Scenario 1
Jessie is a transgender (MTF) student at a California public high school. Jessie has just recently begun to transition, including at school. Alex is a student in Jessie’s class who was raised by conservative parents to believe that being transgender is morally wrong. Every day when Jessie comes into the classroom Alex taunts her and calls her names. When Jessie complained to the teacher, the teacher told her that she should stop drawing so much attention to herself and should just wear “normal” clothes.
Please discuss whether the teacher is breaking the law. Also discuss several ways in which Jessie can advocate for herself.Slide42
Scenario 2
A group of students at a California public school, wants to start a Gay-Straight Alliance club because they feel that LGBTQ students and allies on campus face a lot of harassment and discrimination. When they asked the principal for permission to start the club, she told them that Gay-Straight Alliance clubs were against school policy because it was inappropriate to talk about sexuality at school. ABC high school has several other clubs that are allowed to meet on campus at lunch time and after school, including Math Club, Science Club, Chess Club, Knitting Club, Democratic Club, and Mountain Biking Club. The other clubs are allowed to post flyers in the hallways and present in classrooms.
Please discuss
whether the principal is breaking the law by not allowing the students to form a Gay-Straight Alliance club. Also discuss what the students should do.Slide43
Scenario 3
Daniel is the advisor to the GSA club at a local public high school. He has filed more than twenty complaints with the school on behalf of several different students who participate in the GSA for the bullying they have experienced—from both teachers and other students. One teacher told a student she should “go back in the closet and throw away the key.” None of the students has ever been interviewed about what they have experienced, nor has the school ever provided a written response to any of their complaints.
Please discuss
what responsibilities the school has ignored. Also discuss what Daniel can do to help advocate for his students.Slide44
Scenario 4
Renee is a gender nonconforming student starting at a local public high school. She is trying to enroll in a physical education class. Her counselor will only let her sign up for a dance class because that is what all girls get signed up for whereas all the boys get signed up for cross-country. Renee was also told that on her first day it would be “Blue and Pink Day” where all the boys have to wear blue and all the girls have to wear pink. Renee doesn’t feel comfortable in her dance class and she also doesn’t feel comfortable wearing pink to school.
Please discuss
whether the school is breaking the law.
Also discuss what
Renee can do to help advocate for herself.Slide45
Scenarios
What went well?
What went wrong?
Were the
student’s
rights violated?
What are our recommendations?Slide46
Questions? Comments?
?Slide47
Contact Information
Joey Hernández
Community Engagement & Policy Advocate
ACLU of Southern California
Phone: 213-977-5268
Email: jhernandez@aclu-sc.org