The Department of Education put schools on notice this week that failure to police a pattern of bullying could result in a loss of federal funds. And while civil rights protections on harassment don’t specifically protect gay youth, or youth who are perceived to be gay by peers, the department’s guidance letter to schools spelled out a theory on how they are implicitly protected through Title IX’s prohibition of gender-based harassment, which includes actions that either reinforce gender stereotypes or single out individuals who may not conform to them.
The guidance made headlines, and rightly so, because it is the first statement on the issue to emanate from a federal office. But it is worth noting that the theory has been tried in court a number of times, with some measure of success.
Several civil rights attorneys representing such victims over the last few years say their cases – due to resulting payouts, heightened public awareness or warnings from insurance companies – have led to more proactive responses from some school districts when faced with later similar complaints.
Though judges and juries have not always found for the plaintiff in gay bullying cases argued as Title IX sex discrimination, tales of those victims who have won in court – and the ensuing regulatory changes in those surrounding districts – illustrate the potential impact of the Department of Education’s letter.
Dylan Theno, for instance, sued the Tonganoxie (Kan.) Unified School District under Title IX and a federal jury awarded the district to pay him $250,000 in 2005, leading to an eventual out-of-court settlement of $440,000.
Theno’s counsel argued he was denied a proper education because from the time he was in seventh grade through when he dropped out of high school in 11th grade, his teachers and administrators ignored repeated complaints that students teased him, called him names such as “fag” and “queer,” and directed crude sexual gestures at him.
“Within months after the Theno decision the Kansas Legislature adopted a statute requiring all school districts to have a policy governing bullying, including bullying based on sexual orientation or perceived sexual orientation,” said Arthur Benson, Theno’s attorney. “In addition, I have found in several instances when I get complaints that simply writing a letter to the school district reminding them of the Theno verdict causes the school district to jump up and salute and deal with the problem. So I have not filed any more lawsuits in Kansas.”
An unnamed teen filed a federal civil suit in 2009 against the Mohawk Central School District in the U.S. District Court for the Northern District of New York. The teen claimed school administrators ignored his complaints that he was targeted because he was gay, was settled out of court this March. The settlement negotiated by the teen’s attorneys from the New York Civil Liberties Union did not force Mohawk Central to admit wrongdoing, but it did require the district to install preventative changes, including staff training.
Corey Stoughton, a senior staff attorney at the New York Civil Liberties Union who represented the unnamed teen in the Mohawk case, said settlements like this can lead to the district’s schools becoming “models for other schools, and then there is a ripple effect.”
Part of that ripple effect in New York included the passage in September of the Dignity for all Students Act (DASA), which requires schools to adopt codes of conduct to create bully-free environments.
A Title IX case involving teenager Dane Patterson led to an unusual course of judicial procedures. David Patterson sued the rural Hudson Area Schools district under Title IX over verbal and physical abuse allegedly ignored by the school. Patterson was routinely called a “faggot,” and the incident that triggered the lawsuit involved a fellow student rubbing up against him naked in the locker room.
Patterson reached an out-of-court settlement on the case, but the agreement was not finalized before the jury awarded him $800,000 in damages in March.
It gets stranger. In July, Judge Lawrence Zatkoff overturned the verdict based on his judgment that the discrimination from classmates was not based on gender but on social status and therefore did not apply to Title IX.
Ultimately, the original settlement agreement was enforced, but Patterson’s expert witness, Glenn Stutzky, said the jury verdict and the ensuing rejection by the judge caused an interesting reaction.
“When the decision was first made by the jury [in favor of Patterson], school district blogs and websites and the different lawyers that represent the schools around the nation just lit up,” said Stutzky, the expert witness who consults with Michigan schools on bullying prevention. “They were very interested in what it was the schools needed to do [to prevent gay-harassment and lawsuits].
Stutzky said he received more than a dozen requests for information from across the country after the jury’s decision.
“Then when the judge reversed the decision,” he said, “it got quiet. Nobody seemed to be as concerned anymore.”
Stutzky said he does not know if any of the schools used the materials he sent them to establish a new policy. He only knows the information requests halted after the judge’s decision.
Patterson’s attorney, Terry Heiss, said he still files complaints in some areas that he thinks are not taking gay bullying seriously.
“From what I’m hearing, there does not seem to be filtering down to some of the more rural districts that need to get on top of this,” said Heiss, who is reviewing two cases right now for possible action. “I’m having a lot of inquiries from families who are feeling like the local districts are stonewalling them when they’re making complaints.”
Obstacles to prevent gay bullying extend beyond lack of defined legislation or state policy, Stutzky said. Every school district is required to hire a Title IX coordinator responsible for addressing all discrimination complaints, he points out. But that task frequently is taken on by principals or vice-principal with a pile of other responsibilities to deal with.