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Sexual Orientation and the Public Schools: The Law is Changing and Becoming More Humane


by Richard Fossey, Todd A. DeMitchell & Suzanne Eckes - October 16, 2007

Unfortunately, students and teachers still experience discrimination and harassment based on sexual orientation. Nevertheless, thanks to progressive legislators and courts scattered around the country, discrimination in the schools based on sexual orientation is headed toward the dustbin of American history. Among all the problems that public schools face, it is reassuring to know that the civil rights of gays and lesbians in American schools are expanding and not in retreat.

Let us pause for a moment and reflect on the fate of James Gaylord, a school teacher in Tacoma, Washington during the early 1970s, who was fired after the Tacoma school board learned that he was gay. Prior to this discovery, Gaylord had served without incident as a high school teacher in Tacoma for 12 years and had received favorable teaching evaluations for that whole time period.


Gaylord’s troubles began in October 1972, when a former high school student told Gaylord’s vice principal that he believed Gaylord was a homosexual. The vice principal confronted Gaylord about the accusation, and Gaylord admitted that it was true. About two months later, the school board fired him.


Gaylord appealed his dismissal through the state courts, and five years later the Washington Supreme Court upheld the school board’s decision. In 1977, Washington’s highest court ruled that Gaylord was guilty of immorality under state law, and that once his sexual orientation became known, his efficiency was impaired as a teacher.


Gaylord argued—reasonably enough—that his sexual orientation only became known because the school board had revealed it. But the Washington Supreme Court rejected that argument. “First,” the court said, “by seeking out homosexual company he took the risk that his homosexuality would be discovered.” Furthermore, once Gaylord’s sexual orientation became known, the court reasoned, the school board was under a duty “to protect the school and the students against the impairment of the learning process in all aspects involved” (whatever that may have meant).


In Gaylord’s case, the Washington court ruled, substantial evidence supported the conclusion that Gaylord’s teaching performance had become impaired once it became public knowledge that he was gay. Three fellow teachers spoke against him at the school board hearing, testifying that they objected to his presence at the school both as educators and as parents. The vice principal, principal, and retired superintendent all testified that Gaylord’s continued presence at school “would create problems.” Thus, the Washington Supreme Court ruled, Gaylord’s discharge was lawful.


Obviously, James Gaylord is not the only school employee who experienced discrimination based on sexual orientation. In fact, there are several court cases from the same era that involved adverse employment actions against teachers based on their sexual orientation.


Gaylord v. Tacoma School District No. 10 was decided almost exactly thirty years ago. Fortunately, the law has changed a great deal since that time. Over the years, gay and lesbian students and teachers have won greater legal protection against discrimination. The following is a brief overview of these legal developments.


First, all over the United States, state laws and municipal codes have been adopted to prevent discrimination based on sexual orientation just as other Americans are protected from discrimination based on race, sex, religion, and disability status. In these jurisdictions, conduct such as that of the Tacoma school board in 1972 would be a violation of law. So far, however, less than twenty states have laws in place that protect gays and lesbians from employment discrimination.


Second, several federal courts have ruled that gay and lesbian students and teachers have a right to equal protection under the law, a right that is violated when school districts fail to provide them with the same protection from discrimination and abuse that they provide to other teachers and students.


Third, a number of federal courts have ruled that discrimination against students in the schools based on sexual orientation is a Title IX violation. Although the U.S. Supreme Court has not yet adopted this view, it would probably do so if offered the opportunity.


Fourth, federal courts have ruled repeatedly that gay and lesbian student groups have the right to meet on school campuses under the Equal Access Act in schools that allow other noncurriculum-related student groups to meet on their campuses. So far, only one federal court has ruled to the contrary.


A couple of federal cases illustrate how jurisprudence has changed since the days of the Gaylord case. In Weaver v. Nebo School District (1998), a federal court in Utah ruled that a school district could not relieve a teacher from her volleyball coaching duties simply because she admitted after being asked that she was a lesbian. The federal judge in that case acknowledged that the Constitution could not control prejudices. Nevertheless, the judge wrote, “neither this court nor any other court should, directly or indirectly, legitimize them” (p. 1289). And in Massey v. Banning Unified School (2003), a federal court in California ruled that a school could not remove an eighth-grade girl from her gym class simply because she revealed to a friend that she was a lesbian.


In spite of progress in the courts, particularly the federal courts, attitudes about sexual orientation vary widely from person to person and region to region. In Massachusetts, for example, gays and lesbians have a constitutional right to marry that is protected by the state constitution. On the other hand, in Arizona, state law prohibits any instruction in the schools that portrays homosexuality as a “positive alternative lifestyle.”


Unfortunately, students and teachers still experience discrimination and harassment based on sexual orientation. Nevertheless, thanks to progressive legislators and courts scattered around the country, discrimination in the schools based on sexual orientation is headed toward the dustbin of American history. Among all the problems that public schools face, it is reassuring to know that the civil rights of gays and lesbians in American schools are expanding and not in retreat.


References


Gaylord v. Tacoma School District No. 10, 559 P.2d 1340 (Wash. 1977).


Massey v. Banning Unified School District, 256 F. Supp. 2d 1090 (C.D. Cal. 2003).


Weaver v. Nebo School District, 29 F. Supp. 2d 1279 (D. Utah 1998).




Cite This Article as: Teachers College Record, Date Published: October 16, 2007
https://www.tcrecord.org ID Number: 14654, Date Accessed: 12/3/2021 2:57:36 AM

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About the Author
  • Richard Fossey
    University of North Texas
    E-mail Author
    RICHARD FOSSEY teaches education law and higher education law at the University of North Texas and directs the Texas Higher Education Law Conference at the University. He has a law degree from the University of Texas School of Law and a doctorate in education policy from Harvard University. Prior to entering the field of higher education, he practiced education law in Alaska, representing school districts in Aleut, Athabaskan, and Inuit communities.
  • Todd DeMitchell
    University of New Hampshire
    E-mail Author
    TODD A. DEMITCHELL is Professor and Kimball Fellow, Department of Education & Justice Studies Program at the University of New Hampshire. He studies school law, educational policy, and collective bargaining. He has published three books and over 120 articles, book chapters, and essays. Prior to joining the faculty in higher education he spent 18 years in the public schools as a substitute teacher, teacher, assistant principal, principal, director of personnel & labor relations and superintendent.
  • Suzanne Eckes
    Indiana University

 
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