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Supreme Court and Two States Improve Situation for LGBTs in Schools

By L.K. Regan

For many LGBT people, schools have long been places of peril. From bullying to exclusion from groups and activities, the American school system has many pitfalls for young people coming to terms with their identities. In the last week, however, some very hopeful developments signal that this situation is gradually changing. A close U.S. Supreme Court decision promises to protect access for LGBT students to campus groups at some public universities. Also, new anti-bullying laws protecting LGBTs are now on the books in Illinois, and nearing finalization in New York.

In a five-to-four decision, U.S. Supreme Court has ruled that public universities may refuse financial support to religious student groups that ban gay members. The University of California's Hastings College of Law has an anti-discrimination policy that includes sexual orientation. To receive official recognition, student groups must not fall afoul of this policy. But the non-denominational Christian Legal Society's rules include a ban on anyone participating in "a sexually immoral lifestyle" involving "sexual conduct outside of marriage between a man and a woman." Hastings therefore withdrew its recognition of the 30-member group, meaning that, though the group might remain on campus, it would not be eligible for funding for events and travel, nor granted office space or access to publications and bulletin boards. The Christian Legal Society filed suit on first amendment grounds of infringement on the free practice of their religion.

In the majority opinion, Justice Ruth Bader Ginsburg wrote that the Christian Legal Society had sought "a preferential exemption from Hastings' policy," when in fact, she wrote, the University "may reasonably draw a line in the sand permitting all organizations to express what they wish but no group to discriminate in membership." Ultimately, she wrote, "in requiring the CLS—in common with all other student organizations—to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations." Her opinion, joined by Justices John Paul Stevens, Anthony Kennedy, Stephen Breyer and Sonia Sotomayor, is expected to have implications for the relationship between public universities and many campus groups, including sororities and fraternities. These will now have allow gays into their groups if they want money from public universities with anti-discrimination policies, even if doing so is in opposition to their religious beliefs.

In primary and secondary schools in two states, the situation for gay students is also set to improve. In Illinois on Sunday, Governor Pat Quinn signed into law the Prevent School Violence Act, which updated and added specificity to the state's existing mandates. Under this act, for the first time, bullying is clearly defined, and extended to include cyber-bullying. Protection is also offered to a specific list of categories, including LGBT students. The law also creates a task force to examine the origins and impact of bullying. The findings are likely to be pretty depressing—which is exactly why this law is needed. According to the ACLU of Illinois, "Students report that physical appearance (looks or body size), sexual orientation and gender expression are the most common reasons other students at their school are bullied." The ACLU also reports that more than half of Illinois students that they have been verbally harassed and nearly a quarter report being physically assaulted in school in the last year.

Governor Quinn's signature made Illinois the ninth state with an anti-bullying law that protects gay students, but gay activists have reason to hope that there will very soon be a tenth, New York. Last week, the New York state senate passed an anti-bullying law of its own, one that, like Illinois', protects LGBT students. The Dignity for All Students Act had already passed the state assembly, and Governor David Paterson is expected to sign it. The bill was largely the work of gay Assemblyman Daniel J. O'Donnell, who was pushed to action by the experience of being bullied over his weight as a youth. O'Donnell, speaking to the New York Times, was dismissive of the dated "kids will be kids" attitude." As O'Donnell said, "That leads to suicide and it leads to death. There was a case in California where a transgender kid was murdered. So clearly, bullying escalates. What we’re trying to do is nip bullying in the bud.”

As State Senator Thomas K. Duane, who shepherded the bill through New York's Senate, said in a statement, "No child should be terrified to go to school simply because of who they are."