Malek Calls for Action on Student Harassment Policy
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Malek Calls for Action on Student Harassment Policy

Testimony before Emergency Transitional Education Board of Trustees

Wednesday, February 9, 2000

Chairman Cooper, Trustees, and fellow citizens:

My name is Lukas Malek. I am the Vice President for Administration of the Gay and Lesbian Activists Alliance of Washington, DC (GLAA), the oldest continually active gay and lesbian rights organization in the country. One of GLAA’s first legislative successes was getting the DC School Board to add sexual orientation to the non-discrimination policy of the District schools in 1972. This was the first anti-discrimination policy in the country to protect gay students, teachers and school staff members.

I appreciate this opportunity to testify before you on such short notice. GLAA wants to bring to you a major concern of the gay and lesbian community: the ongoing harassment of gay and lesbian students in the public school system and the very real danger of very expensive litigation that the City faces for failure to protect our students.

GLAA has been talking with DCPS for the last 8 months in an attempt to get them to institute an anti-harassment policy that will include sexual orientation. We have had a difficult time getting some in the present school administration to see the difference between discrimination and harassment. Discrimination is defined as being perpetrated by an authority figure and is currently prohibited, whereas harassment is defined as being student-on-student and is not presently addressed.

DCPS has no policy to protect students from verbal harassment based on actual or perceived sexual orientation. In fact, there is nothing that prevents similar forms of harassment and derogatory language based on ethnicity, religion, and other protected classes.

There are vaguely worded protections from physical harassment that gay and lesbian students regularly face, however teachers and staff are not offered any training on dealing with student-on-student harassment and these rules are rarely, if ever, enforced with regard to sexual orientation protection.

Most of us in GLAA have our own horror stories from when we were in school. In fact, just last month on January 18th, USA Today ran a cover story that highlighted some of the anti-gay remarks and harassment that go on in schools nationwide. In a survey, commissioned by the Gay, Lesbian and Straight Education Network, nearly 500 gay teens from 32 states and the District of Columbia responded as follows: 91% said they "sometimes or frequently heard homophobic remarks," 69% have "experience[d] some form of harassment," 42% do "not feel safe" in school, 39% said that "no one intervened when homophobic remarks were made," and 37% even heard "homophobic remarks from faculty or school staff."

Now while we do have a strong non-discrimination policy here in DCPS and we have not received any complaints of violation of this policy, homophobic harassment of students in DCPS facilities — student-on-student verbal harassment, sexual harassment and physical harassment — has the potential to be a major problem.

Not only should this problem be resolved for moral reasons and because it is the right thing to do, there is also a serious fiscal liability that the District government is leaving itself open to. In 1999, the US Supreme Court ruled in Davis v. Monroe County Board of Education that school districts were liable, and subject to financial penalties, if they are aware of harassment and fail to protect students. Justice Sandra Day O’Connor wrote that lawsuits might be filed against school officials who knowingly and deliberately ignore student-on-student harassment. The Supreme Court recently clarified that Title IX does cover gay and lesbian students. In Nabozny v. Podlensky, the Wisconsin school district that ignored student brutality against a gay classmate lost nearly one million dollars.

Superintendent Ackerman and her staff have had this issue before them since late last summer when we first raised the issue with them in a letter from our then President, Craig Howell. Mr. Howell's letter received no response. When Councilmembers Jim Graham and Carol Schwartz followed up with similar letters, Ms. Ackerman's staff responded by saying, right here in this room, that they would be working on the issue, and would be including community input. This community input failed to include GLAA, who is the recognized community leaders on GLBT issues. In fact, our conversations with Ms. Ackerman's staff provided us with numerous conflicting statements — including not knowing whether the issue should come to this body or to the elected School Board, the difference between discrimination and harassment, or even the need for such a policy. Just this morning, I received word from General Counsel Veleter Mazyck that outside legal counsel had determined that no new policy was needed.

This legal opinion is wrong. There are lawyers who work at GWU who are currently looking for students who attend DCPS and who have been harassed to represent pro bono in a legal suit against the DCPS and the District. GLAA has had the existing DCPS policies that Ms. Ackerman's staff has referred to reviewed by gay legal experts and it has been found to be deficient. It is not even near the level of the flawed policy that cost a school district in Wisconsin a nearly one million dollar judgment.

I am appalled with DCPS's decision not to implement a comprehensive anti-harassment policy. Given the legal liability alone, such a policy makes sense. GLAA has offered our assistance in any way possible on numerous occasions. We do not care about the politics and behind-the-scenes bureaucracy involved in getting this policy in place. Our only concern in this matter is the welfare and well-being of the gay, lesbian, bisexual and transgender youth attending DC Public Schools. For their sakes, I hope that this policy is implemented, and enforced, very soon.

Thank you and I am free to answer any questions that you may have.

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