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14. Do school employees
have a legal responsibility to take action when they hear anti-LGBT slurs in the
hallways or on the playground?
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Public school employees
have no freestanding constitutional obligation to take action against
name-calling. However, if school employees take action against some kinds of
harassment (as they mostly do when they’re aware of it), they can’t
irrationally choose to ignore other kinds of mistreatment. This means they
cannot treat harassment less seriously just because it is anti-LGBT in nature.20
Non-discrimination with respect to sexual orientation and gender identity is
also a matter of Washington State law. That said, failure to respond to a
single incident of anti-LGBT name-calling is not likely to result in a
finding that a student’s rights were violated, either under state or federal
law.21 Discriminatory harassment generally must reach a certain level
of severity and/or pervasiveness before a school or its officials can be held
liable for failing to address it.
20 Court cases applying these principles
include Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130 (9th Cir. 2003);
Nabozny v. Podlesny, 92 F.3d 446 (1996); Seiwert v. Spencer-Owen Comm’y Sch.
Corp., 497 F. Supp. 2d 942 (D. Ind. 2007); and Montgomery v. Independent School
Dist. No. 709, 109 F.Supp.2d 1081 (D. Minn. 2000). See also this page from the
ACLU of Washington about a lawsuit brought by former high school student Mark
Iversen:
www.aclu-wa.org/detail.cfm?id=174
21 Washington Revised Code §§ 49.60.010, 49.60.040, 49.60.215. See
also The Washington State Human Rights Commission page about the complaint
process:
www.hum.wa.gov/complaintProcess/ |
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