As for legal strategies, DO try to persuade your state or local legal eagles to take an interest in this whole arena of our struggle. A while back, we gleaned the following assessment from the coordinator of the lesbian and gay law students' association: "In 1973, the Supreme Court ruled that education is not a fundamental right. San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). 'Fundamental right' is a legally significant term. It is very difficult (from a legal standpoint) for the government to deny absolute equality of access to any public function to which citizens have a 'fundamental right.' This leaves us in a difficult situation when we try to demand educational equality. An approach which is more likely to work is to sue under State, rather than Federal, constitutional principles. This can succeed because States are allowed to provide MORE protection than the Federal constitution, but never less."
However, a recent court action shows the principle of "local control" is not as sacred as it would seem. In late July 1995, the Massachusetts Supreme Court ruled unanimously that the Falmouth public schools could distribute condoms in the nurse's office along with materials on abstinence and sexually transmitted disease. Within minutes, Pat Robertson's legal arm, the "American Center for Law and Justice", vowed to take the case to the Supreme Court to take away Falmouth's control over its own schools. "Schools have an obligation to accommodate the religious and moral teachings of parents," proclaimed ACLJ head Jay Sekulow. NOTE THIS HYPOCRISY...YOU WILL SEE IT AGAIN...AND AGAIN. USE IT AGAINST THEM. AMERICANS LIKE FAIRNESS, NOT DOUBLE STANDARDS.
Keep in mind that "In its landmark 1982 decision called *Board of Education v. Pico,* the United States Supreme Court said that local school boards must exercise their authority in a manner that is consistent with the First Amendment. "In the *Pico* case, the Supreme Court found that students' First Amendment rights are 'directly and sharply implicated by the removal of books from the shelves of school libraries.' The Court said that 'the special characteristics of the school library make that environment especially appropriate for the recognition of the First Amendment rights of students.' According to the Supreme Court, school officials cannot remove books from school libraries in order to deny students access to ideas ... "local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books," the Court said.
Keep a wary weather eye on the federal level, where in both 1994 and 1995 there were serious legislative threats to prohibit schools which receive federal funding (most urban schools) from offering any instruction, programs or services that have the "purpose of effect" of presenting homosexuality as a "positive or alternative lifestyle." In 1995, House Bill H862 was introduced. It read "Be it enacted by the Senate and House of Representatives of the USA in Congress assembled, Section 1. Prohibition on use of federal funds to promote homosexuality. No Federal funds may be used directly or indirectly to promote, condone, accept or celebrate homosexuality, lesbianism, or bisexuality."
We have recent hopes that some of our national legal agencies, such as NCLR (National Center for Lesbian Rights, in San Francisco) and LLDEF (Lambda Legal Defense and Education Fund, in New York City) are getting interested in these issues. Keep them in the loop on your activities (see below for how to contact them and CHECK OUT APPENDIX VIII for the full text of a legal brief on education issues raised by the Colorado Amendent 2 case, now before the U.S. Supreme Court).
Our work in part hinges on the sad but likely possibility that lawsuits may ultimately be necessary to obtain educational equity in public education. We say "sad" because to bring a successful suit, one must have an injured party or class, i.e. someone has to suffer or be hurt. We prefer, naturally, that policy makers do the right thing because it is right and because they understand the need, but most are still too uninformed or scared. One thrust of our strategy has always been to inundate policy makers with resources and research. This is our good-faith attempt to educate them AND to provide them with "cover" to justify doing the right thing. However, should our efforts fails, you will have laid the basis for a legal argument based on misfeasance, malfeasance, and/or nonfeasance. AND, if you've documented your work, you've removed as a possible defense argument that they "didn't know." They sure DID know the suicide rate, because we send them their own copies of the studies. They sure did know the drop-out rate, the alcoholism rate, the run-away rate of LGBT youth, because we provided them with their own copies of the latest and best research.
LEGAL RESOURCES FOR LGBT YOUTH & SERVICE PROVIDERS WORKING WITH LGBT YOUTH:
N.B. Abbreviations used throughout:
LGBT= lesbian gay bisexual transgender
DOE= Department of Education
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Last updated 4/1/2002 by Jean Richter, richter@eecs.Berkeley.EDU