New York State School Boards Association

Students’ sexual orientations raise legal and policy challenges

On Board Online • Forecast  • March 16, 2009

By Edwin C. Darden 

Once an issue primarily for colleges, the sexual identity of students has become an issue for high schools and even middle schools. The average lesbian and gay youth now comes out at age 16, compared to age 21 in the 1970s, according to Cornell University professor Ritch Savin-Williams.

In schools today, some students publicly identify themselves as lesbian, gay, bisexual or transgender (feeling that one has been born with the wrong gender). Others are unsure of their orientation and may describe themselves as “questioning.” To refer to them all, there is a five-letter abbreviation: LGBTQ.

In the mid-1990s, only a few dozen Gay-Straight Alliance clubs existed in U.S. high schools; now there are at least 3,200 registered with Gay, Lesbian and Straight Education Network (GLSEN). The group, headquartered in New York City, exists to support students who identify themselves as something other than heterosexual. It also sponsors an annual “Ally Week” in which heterosexual students to take actions to support their gay friends, including signing a pledge to intervene in situations where students are being harassed, “if I safely can.”

For school board members, students’ frankness about sexual identity can raise logistical, pedagogical, legal and moral issues. Disputes have led to clashes in the courts and in state legislatures; they could appear next in your boardroom. Just as society must make decisions on gay marriage, gay adoption and other issues, school boards will have to address issues involving LGBTQ students.

There is opposition. Some Americans view gay lifestyles as aberrant and unnatural, irrelevant to the business of education, and harmful for children to be exposed to. To these citizens, supporting gay students is tantamount to promoting homosexuality with tax dollars.

For instance, in October 2008, John Rustin, director of government relations for the North Carolina Family Policy Council, protested GLSEN’s Ally Week as “pro-homosexual bullying” and “just another example of how the pro-homosexual movement is using the issue of ‘school safety’ to promote their radical agenda in schools.”

Legal and policy issues

Must school boards get involved with LGBTQ issues? To some degree the answer is yes, stemming from a school board’s duty to ensure a safe school environment that is productive for learning. LGBTQ students are often targets of bullying or harassment, and that can affect a student’s mental health and physical well-being.

School psychologists and guidance counselors say gay students are more likely to contemplate suicide or be depressed. They are also more susceptible to alcohol or marijuana abuse.

What represents an appropriate level of action by a school board to deal with issues that LGBTQ students are likely to encounter? Each school board must decide this for itself.

Policymaking requires judgment because schools face a host of legal and policy issues connected to students’ sexual orientation. Below are a few of the more common issues.

Student clubs. The law is clear that students can form organizations based on sexual orientation. The federal Equal Access Act grants gay and straight clubs the same rights as anyone else. The only lawful way to prevent such a development would be to eliminate clubs altogether.

The presence of a student club that supports gay students can affect school climate; a GLSEN study found that students attending schools with a Gay-Straight Alliance reported hearing fewer homophobic remarks, experienced less harassment and were more likely to report negative incidents to school staff.

T-shirts and other expressions. Students have a constitutional right to free speech on school campuses, but school administrators and sometimes the courts are asked to decide what limits apply. Is it disruptive for a student to wear a pro-gay T-shirt? How about a shirt with an anti-gay slogan?

The general rule is that while students have a right to free speech, they do not have the liberty to abuse others.

Two court-tested approaches help guide schools in First Amendment situations. One is to weigh whether the speech is contrary to the mission of the school system. Another is to determine whether the speech is lewd, clearly offensive or otherwise outside the boundaries of protected speech.

Prom, yearbook and graduation. Schools are sometimes confronted with a student who wants to attend prom in clothing associated with the opposite gender. There are three options: prohibit it, permit it or make exceptions under certain justifiable circumstances. If there is a reasonable fear of violence or disruption, or safety concerns, a rule about sex-appropriate clothing might be successfully defended. By contrast, if the fashion mandate appears arbitrary or discriminatory, those limitations can be struck down.

In 2005, the National Center for Lesbian Rights along with a group called Equality Florida filed a lawsuit against Fleming Island High School in Clay County, Fla. Officials denied graduating female student Kelli Davis the right to appear in her class yearbook wearing a tuxedo. The school district settled the case by changing its portrait policy, adding sexual orientation to its non-discrimination policy and agreeing to other concessions.

Yearbook pictures can also be a source of conflict, with policy discussions revolving around portraits of a same-sex kiss or display advertising by the gay-straight club.

Bathrooms. A New York State Supreme Court in 2005 addressed bathroom use in a non-school case. In Hispanic Aides Forum v. Bruno, the court determined that a landlord did not discriminate in requiring individuals to use gender-specific restrooms based on biological sex rather than sex self-image. School attorneys have referenced this decision in advising a Long Island district with a transgender student.

Curriculum. A recent study of health education programs by the U.S. Center for Disease Control’s Division of Adolescent and School Health found that 48 percent of schools nationwide teach about sexual identity and sexual orientation. By contrast, 86 percent of all public school districts with a sex education policy teach abstinence.

What to teach on this subject, at what grade level to teach it and how are all subject to board judgment. Dueling perspectives between activists and people with religious or moral objections could be a potential powder keg in a given community.

How much attention is enough?

New York’s 2008 Teacher of the Year, Richard Ognibene, says school boards have a moral obligation to address LGBTQ in a deliberate and comprehensive way. “School board members are the ultimate adults in the school and they set the tone,” said Ognibene, an openly gay instructor at Fairport High School near Rochester.

He calls for school boards to move beyond the role of policy-makers to be social leaders. “Policies mean nothing if you don’t have openly gay staff,” he said. Ognibene said school districts need to cultivate a culture “where gay teachers, administrators and support staff feel safe talking about their families in the same way heterosexuals do.”

In a subject full of controversy, it seems clear that school boards, at a minimum, have an essential role in promoting civility and ensuring a safe environment for education. Composed of elected citizens, school boards are uniquely qualified to examine options and work out local solutions for their individual school districts.

While issues related to sexual orientation can be difficult, public schools have a long, successful history of dealing with social change. Even with an issue as tough – and tongue-twisting – as LGBTQ, there is no reason why school boards cannot continue their unique ability to demonstrate leadership.

This article is condensed from the Spring 2009 issue of NYSSBA’s Forecast newsletter, which covers emerging issues in public education. See Edwin C. Darden is an attorney and expert on legal and policy issues that influence K-12 public education. He is the principal of EdAd-vocacy, a consulting firm near Washington, D.C. Contact him at


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