Why We Need the Student Non-Discrimination Act


This post comes courtesy of Hayley Gornberg, Deputy Legal Director at Lambda Legal. Lambda Legal is currently filing suit on behalf of Maverick Couch, a student from Waynesville High School in Waynesville, Ohio who, after wearing a t-shirt to school that read “Jesus is not a homophobe,” was ordered by his principal to turn the T-shirt inside out and told that if he wore it again he would be suspended from school. You can show your support for Maverick, Lambda Legal, and the work being done on behalf of LGBTQ students around the country by signing the pledge.

16 years ago, we successfully represented Jamie Nabozny after he endured years of bullying and harassment at school. The ruling from the court in his case made clear for the first time that the Constitution protects gay students from harassment and abuse just as much as it protects other kids. We at Lambda Legal are very proud of that; the case spoke volumes then, and still does.

But there’s too long a line of school cases following Jamie’s lead. Too many schools around the country still allow the abuse of LGBT students to such a degree that Lambda Legal and our sister organizations can predict the fact patterns. There are often three common elements to the lawsuits we bring on behalf of students who experience anti-LGBT bullying, and we can do something to change all of them.

1. The bullying cases classically include combinations of verbal slurs and physical acts. For example, boys called “sissy” and girls taunted for being “butch.” We add this analysis about stereotypes because we don’t have federal laws that are crystal clear about protecting young people against abuse based upon sexual orientation. But the problem with not having specific enough laws is not just about some clearer legal claims in court. What’s really important is that better laws and policies and training would give even more specific guidance to schools — to help keep these cases from ever happening in the first place.

Nearly every case narrative we have includes something along the lines of this phrase: “And then it escalated to physical assaults.” I have been thinking about that repeating narrative a lot lately. About how the failure to intervene at the level of verbal taunts gives the green light to escalation. Shoving into lockers. Tripping, grabbing, kicking, punching.

2. As was the case in Jamie’s experience, school officials said to the target of antigay bullying: “You’re bringing this on yourself.” “Don’t act so gay.” “Don’t flaunt it.” Instead, school officials need to intervene at all levels, and they need to do so effectively. 

If a student doesn’t know or is too scared to say who abused her or him, many officials refuse to respond in any way. There’s no publication or republication of a nonharassment policy. No announcements. No school assembly. Instead, the student is blamed for being the target. Our lawsuit fact pattern builds.

3. Even if the student knows and says exactly who abused her or him, school officials retaliate rather than providing real support. They suggest moving the target student out of class. They misclassify the student as disturbed or developmentally delayed. They say the answer is to isolate the target student — have him or her sit alone in an unused classroom, or in the library and study a book. They punish the target.

Mistreated students, in schools with poor policies and training, may quite understandably give up reporting the abuse to the school administration. The school then attempts to use this purported “failure” by the student as a defense, saying there was lack of notice of harassment and bullying.

Sometimes, as in our current case in upstate New York, in which the Department of Justice has filed a significant amicus brief, school staff members actually participate in the taunts and gestures and abuse. Have they been trained otherwise? Have policies been distributed, posted, enforced? Doesn’t seem like it. That’s why we and our sister organizations often settle our cases on terms that include policy change and training.

Our clients aren’t out for money. I have yet to meet a Lambda Legal client who doesn’t say, “I want to bring this case so no one else has to go through what I went through.” Yes, Jamie’s case settling for nearly a million dollars certainly spoke volumes, in dollar signs as well as constitutional law. But my point is that we do these cases because so many members of these school communities still need to be educated.

Or maybe some staff are trained, and alert, and committed to providing a safe environment for every student to learn. Maybe they’re like our client Cheryl Bachmann, a young, straight New Jersey public school teacher fired after she disciplined students for using antigay slurs in her classroom. The administration objected that she should have put up with it, and actually wrote her up for what they termed, “failing to tolerate unacceptable behavior.”

As I pointed out to the school board at Cheryl’s hearing to fight her firing, the school’s response would have been fantastic fuel for a harassment case brought by a student. Think of it: the only teacher to actually stand up and comply with the nondiscrimination law gets fired for doing so. We got her job back, and I hope many teachers were encouraged to read her story; but we must know that some read it as a cautionary tale. Their students are all the more vulnerable for that. Even committed educated staff need our support.

I will close with a point about the connection between harassment and tamping down LGBT expressive rights. In our Pratt case in upstate New York, we’re representing a gay student who was harassed till he dropped out of school, and his younger sister, a current high school student who does not identify as LGBT, but saw what her brother endured. Both tried to start a gay-straight alliance at the school, and both were blocked by school officials till our lawsuit. Our case illustrates, again, connections between expressive rights and bullying in school environments. And when I talk about expressive rights, I’m also talking about the perennial parade of cases about LGBT students blocked from prom, and from other core expressive activities in schools.

It is my strong opinion that Lambda Legal and our sister organizations should never have to bring another one of these expressive rights cases. Bullying and harassment cases involve youth as well as officials, and officials may raise arguments about what is beyond their awareness and ability to control. But the prom shut-out cases punishing LGBT students, the GSA suppression cases where students of all orientations and identities are blocked from contributing to a more supportive environment in schools, are entirely within the control of school officials.

We have celebrated students’ silver anniversary with the Equal Access Act. The First Amendment is wonderfully old. Flagrant violations of these well-established laws are entirely within the decision-making and control of school officials. Denying students core expressive rights incubates harassment and bullying. And it should stop today. We urge Congress to pass the Student Non Discrimination Act.


Related Stories:

73% of Voters Want an LGBT Non-Discrimination Order

Transgender Teacher Forced to Quit Job in New Mexico

Gay-Inclusive Prom Idea Gets Student President Fired?


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Bryna Pizzo
Bryna Pizzo2 years ago

Thank you for your efforts to help spread the word about the importance of taking action and advocating for LGBT students and students in general.

Svetlana B.
Svetlana B.2 years ago

Petition signed. I like the T-shirt. TY for sharing

Danuta Watola
Danuta Watola3 years ago

Thanks for a great article,

Muriel C.
Muriel C.3 years ago

A Civic Education class, stating in 1st grade, would add but one period a week to the school schedule and there is no need to remove any other type of learning. (Especially not Geography, of which most Americans are abysmally ignorant). It's not a matter of lack of time, willingness, or teachers' availability. It's just a matter of parental ignorance (and/or shortsightedness) combined with poor repartition of $$$: State budgets cut school days shorter and shorter and fire experienced teachers leading to classes more and more crowded, in order to keep our elected officials' salaries and benefits outrageously high.
The very same representatives (of whom) and senators whom we elect to take away our freedom by killing our critical thinking. Our priorities are skewed.

Darryll Green
Darryll Green3 years ago

here is evidence of evolution, as the people go so do the children, bullying is tought by the parents as they learned it from their parents, the young man was right about one thing, Jesus was not a homophobe, but he would call you on the sin of homosexuality, along with the sin of, adultry, lying, stealing, talking about people behind their backs and more, Jesus loves all of us

Rose Becke3 years ago

I agree with Krysti S

Tony C.
Tony C.3 years ago

A class in RESPECT AND RESPONSIBILITY should be taught from Grade one to graduation, children should be taught that anything is permissible as long as it does not hurt themselves or anybody else. Common sense would dictate that if children are taught at a very early age that every child has their own strengths and weaknesses and that they should use their strengths to help not tease or bully others. It should not matter if a child comes from a FAMILY of a mother and father, 2 mothers or 2 fathers or a single mother or father as long as they are LOVED.
Sex Education should be taught from LGBT, Contraceptives, Masturbation, Pregnancy and all forms of sex. Let us face it whether we like it or not children are curious and are having sex earlier and earlier. Children should be taught the joys and the consequences of having sex ( Pregnancy, STD, AIDS and others.) But you say when will this be taught. Cut out Geography or History early on then put it back in and remove Geometry or Algebra. They can learn this in college if needed. I believe this is a solution. Stopping the damage before it starts so that Bullying, Sexual Assault, and many others will be greatly diminished if not eradicated. It is my belief that when children graduate with these principals where they are taught RESPECT for themselves and others and to take RESPONSIBILITY for their actions. If children grow up with these principals I believe business and government would benefit greatly. Within a few generations

Allen Pierce
Allen Pierce3 years ago

-- David K. -- I think that you are correct, and as Allen J. pointed out, this problem comes down to a lack of human respect, which is something learned from the adults operating in the lives of these students. Children who bully are often themselves bullied by their parents, and as a result have low self-esteem. One cannot respect others if they do not respect themselves, and if your parent tells you, by word or deed, that you do not deserve respect, you believe it, and then pass that message on to others.

We all must do everything that we can to impact the lives of children around us in a positive way, but this applies to parents and teachers most especially. If we do not find a way to break the cycle of bullying we stand very little chance of advancing as a society.

Karen Howard
Karen H.3 years ago

Shoving into lockers. Tripping, grabbing, kicking, punching. These are physical attacks that should be dealt with immediately by school officials. It doesn’t matter if the bully is attacking because of the victim’s sexual orientation, “nerdiness”, race, religion, or anything else. It’s assault, which is illegal.

School guidance counselors (as well as the rest of the staff) need to be taught how to deal with bullying because it’s obvious a lot of parents don’t give a damn. Listen to the victims, talk to the bullies. Don’t automatically blame the victim. One child I know was physically bullied simply because of hair color. I’m surprised school officials didn’t say, “Just die your hair.” And don’t single out the victim. When I was bullied, a school administrator brought the bullies into the office (with me) and asked, “Are you bullying her?” Of course, they said no, but the looks they gave me turned my blood cold. The administrator told me it was all my imagination. I was fortunate, because they realized I was going to stand up for myself, so they stopped.

If a victim is afraid to name the attacker, don’t simply walk away. Sometimes victims are afraid of retribution. The bully—and his/her friends—will escalate the physical violence.
As the article says, victims don’t want money. We want the bullying to STOP. We want to be treated like every other student. We want to feel sa

Andrew Carvin
Andrew Carvin3 years ago

I made a video about why Homosexuals should have equal rights. It’s at my YouTube channel Zarrakan, and here’s the link:


Watch it, share it, and join the fight against the evil Homophobes.