Rights Watch
Big Legal Victories For Gay Students And Teachers

In groundbreaking rulings, the courts have sent school boards a clear message: Do more to stop gay bashing or pay the price.

Derek Henkle was spit on, beat up, and called names. Simply because he's gay. But the last straw for the Reno, Nevada, high school student came when classmates threw a rope around his neck and threatened to drag him behind a pick-up truck, just like James Byrd Jr.

Even after he transferred to two other high schools in the Washoe County School District, the harassment continued. His pleas for help were ignored, with one principal warning him to stop "acting like a fag."

So Derek Henkle dropped out and sued the school district, claiming that the district violated his constitutional rights by failing to stop the peer harassment.

Last August, the Washoe County School District agreed to pay Henkle $451,000 and to adopt sweeping changes to its policies and programs.

Peter Obstler, Henkle's attorney, proclaimed that the case "sends a message to the nation's schools that the harassment of gay and lesbian students will not be tolerated and that the failure to respond to that harassment has serious financial consequences for school districts. Simply put, 'If you bash, you pay.'"

Among other things, the district agreed to require students and staff to receive training about sexual harassment and intimidation.

In an equally important new development, several courts have recently ruled that school districts have to take action to stop students from harassing teachers because of their sexual orientation.

Last August, for example, a federal district court in New York held that the Comsewogue School District violated the constitutional rights of Joan Lovell, a lesbian teacher, by "failing to take reasonable measures to prevent students from harassing her due to her homosexuality."

Lovell alleged that students called her "dyke" and "disgusting" and that two female students began to hug each other when they saw her in the hall. When Lovell complained to her principal, Joseph Rella, he failed to punish the students or take any other remedial action.

So Lovell sued both her school district and Rella, claiming a violation of her right to "equal protection" under the federal Constitution. She argued that school officials suspended students for acts of racial harassment, but did nothing to the students who called her "dyke."

The court agreed, ruling that it is "well-established that governmental discrimination against homosexuals...violate[s] the equal protection clause."

In Wisconsin, however, a teacher had less success in his lawsuit against the Hamilton School District. Tommy Schroeder claimed that school officials failed to do enough to stop the harassment he suffered because of his sexual orientation.

He alleged that students called him "queer" and "faggot" in the hallways and on bus duty and wrote graffiti in the bathroom identifying him as a "faggot." He also maintained that students and parents made anonymous, harassing phone calls to his home.

District officials claimed that they punished the offending students whenever they could be identified. But Schroeder argued that the school administration should have done more--namely, they should have required all students and staff to attend workshops on sexual orientation discrimination.

In a ruling last March, the Seventh Circuit Court of Appeals rejected that argument. Although agreeing that school officials had a legal obligation to take reasonable steps to stop the harassment of Schroeder, the court held that they did enough by punishing the known harassers and had no duty to implement diversity training as Schroeder had requested.

In California last August, a teacher won a $1.1 million settlement from the San Leandro Unified School District, which had disciplined him for speaking to his students about equality and respect for gay, lesbian, and bisexual persons.

Two parents had accused high school teacher Karl Debro of attempting to "brainwash" his students and make them "become gay." In response, school officials reprimanded Debro, who is married with children.

Debro sued, claiming a violation of his free speech rights and his obligation under California law to combat all forms of bias, including homophobia.

On August 8, 2002, a jury awarded Debro $500,000 for emotional distress. On the eve of the punitive damages phase of the trial, the school district settled the case for $1,155,000.

The school district also agreed to remove the reprimand memos from Debro's file and institute a comprehensive training program on diversity for students and staff.

A new NEA booklet, "Know Your Rights: Legal Protection for Gay, Lesbian, Bisexual, and Transgendered Education Employees," summarizes recent legal developments and offers practical advice for persons who believe they have been the victim of discrimination based on sexual orientation or gender identification. The booklet is posted at www.owl.org and copies will be mailed to NEA state affiliates. Limited numbers of complimentary copies are available from NEA Human and Civil Rights (202/822-7700).

--Michael D. Simpson
NEA Office of General Counsel

Florida Voucher Program Struck Down

In a blow to voucher proponents, a circuit court judge last August declared that Florida's voucher program violates the state constitution's ban on the use of public money to aid religious institutions.

The decision was announced just six weeks after the U.S. Supreme Court rejected NEA's arguments that the Cleveland voucher program violates the federal constitution's Establishment Clause.

But Leon County Circuit Judge P. Kevin Davey concluded that the pertinent clause of the Florida constitution goes further, providing that, "No revenue of the state...shall ever be taken from the public treasury directly or indirectly in aid of any church...or any sectarian institution." This language, Judge Davey wrote, "is clear and unambiguous. There is scant room for interpretation or parsing."

The state has appealed the ruling, and the court has allowed the voucher program to continue pending the appeal. The court, however, ordered the state to post a $2.5 million dollar bond to repay adversely affected public schools if the lower court decision is upheld on appeal.

A decision is not expected until sometime in 2003. NEA is sponsoring the litigation.

--M.D.S.