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Education, High-School Sports, Legal

Sexual Orientation in Public Schools – General Legal Principles

Now more than ever, school personnel are struggling to provide environments where lesbian, gay, and bisexual youth are free from prejudice, discrimination, and violence. Principals, educators, coaches, etc., should be aware of general legal principles concerning the rights of these students, as there is significant risk of harm to the students’ physical health, mental health, and education. In addition, there is substantial legal liability for school districts and officials. While there are many local, state, and federal laws that protect students from discrimination, harassment, and similar harms, two principles from the U.S. Constitution apply to every public school in the country; the First and Fourteenth Amendments.

The Establishment Clause of the First Amendment prohibits public schools from promoting, endorsing, or inhibiting religion or attempting to impose particular religious beliefs on students. While public schools must avoid religious advocacy, they have considerable flexibility in developing their curriculum, provided instructional activity does not indoctrinate religious views about sexual orientation. In fact, public schools may determine not to disseminate information to students when that information is not well-founded, researched, or biased. School officials should routinely consider the views of professional experts in determining which educational and instructional materials are utilized in their schools.

Public schools must also be aware that their legal obligations under the Establishment Clause may be different when they create a forum for outside speakers to present to students, or when students are invited to speak about topics on their own. Depending on the individual context, schools may not be able to forbid certain speakers who wish to express their viewpoints at such events.

The Fourteenth Amendment protects lesbian, gay, and bisexual students through the requirements of equal treatment under the law. Public officials may not impose unequal treatment or discriminatory burdens on students because of public animosity toward them. This means that school districts must protect their students from anti-gay harassment in the same manner they would protect students from other forms and kinds of harassment. However, the legal mandate for equality is not limited to circumstances of harassment – it applies to all decisions public school officials may make that treat students differently based on their real or perceived sexual orientation. Thus, schools should be cautious when selecting their curriculum and avoid choices that may single out, stigmatize, or condemn lesbian, gay, and bisexual students.

These general legal principles, complemented by consultation with legal counsel, should be useful in making decisions that educate and protect all students.

Contact David O. Fleischer (954-941-1844; dfleischer@bucknersportslaw.com) for additional recommendations relating to Title IX and gender-equity issues.



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