CHAMPAIGN, Ill. – Educators will take the issue of gay harassment in public schools more seriously if federal courts start enforcing a gay student’s right to equal protection under the 14th Amendment, an article in the University of Illinois Law Review argues.
The abuse that gay students face from their peers is “as vicious and cruel as it is pervasive,” writes Jeffrey I. Bedell, an editor of the law journal, but it is not treated as seriously as other forms of harassment.
“The vast majority of both school officials and students view harassment aimed at an individual because of race, religion or sex as unacceptable. In the case of anti-gay peer harassment, homophobic insults are routinely dismissed as ordinary ‘teasing’ that every adolescent encounters.”
But citing court cases and newspaper articles, Bedell reported that the maltreatment of gay students often goes beyond slurs and jokes to include threats, physical intimidation and sexual attacks, which can leave the harassed students incapable of receiving a basic education.
“Exacerbating the problems faced by these students is the fact that in many cases adults who are in a position to end the harassment do nothing,” Bedell continued. “Students who harass other students based on their perceived or actual sexual orientation interpret this inaction on the part of school officials as tacit approval to continue or even escalate the abuse.”
In a review of legal decisions, Bedell found that federal courts have rejected the argument that gay harassment is a form of discrimination as defined by Title IX, the 1972 law that bars sex discrimination in education, including sports.
This interpretation has been bolstered by a U.S. Department of Education administrative ruling that “discrimination on the basis of sexual orientation” does not constitute “sexual harassment covered by Title IX.”
Gay students may try to stop abusive peer behavior by bringing a civil suit against school officials, but such action is expensive, tedious and requires the student to “isolate the precise violation” that forms the basis of the action. And even if these hurdles are met, school officials may still qualify for immunity as government officials, according to the Illinois scholar.
Bedell asserts that school officials who do not attempt to stop peer harassment based on sexual leanings are violating a student’s rights under the equal protection clause of the 14th Amendment.
Moreover, acceptance by school officials of harassing behavior injuries all students, both gay and straight, by creating a climate of fear and intolerance in the schools.
School districts should take the lead on this issue by approving anti-harassment rules that would bar homophobic remarks and mistreatment of students based on sexual orientation, he said.
Bedell’s article is titled, “Personal Liability of School Officials Who Ignore Peer Harassment of Gay Students.”
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