Kansas Schools Protect LGBTQ Students As Legal Experts Dismiss Lawsuit Concerns

Dec 23, 2019
Originally published on December 24, 2019 4:09 am

A Wichita teacher accused the district’s school board of moving slowly on passing protections for LGBTQ students at the start of its December meeting.

Later in the meeting, after the district did pass such a statement, one of the board’s longest serving members announced his resignation.

Kansas schools have been adding gender identity and sexual orientation to their nondiscrimination policies. Olathe and Manhattan updated their policies this past year while Topeka did so about a decade ago.

Wichita is the latest — and largest — district to take action to protect gay and transgender students, who are more likely to be bullied in school halls.

But some board members have opposed the changes. They say the protections are rushed and could expose  schools to lawsuits.

But legal experts say schools face greater legal jeopardy by not defending LGBTQ rights.

Speaking Up

Avery Kassman was a fifth-grade student at a private school in Wichita when her teacher told the class being gay was wrong.

The comments were not aimed at Avery, but they still shook her. She felt her tears flow and classmates’ eyes follow her as she left for the restroom.

Her teacher followed.

“She said that… you should already know how morally wrong it is to be gay or transgender, and it’s like having depression,” Avery said.

When Kassman’s mom, Sarah Lopez, found out, she transferred her daughter to Wichita Public Schools. Lopez said Avery, who was still anxious from the experience, immediately improved after hearing she wouldn’t have to return to the same school.

“When I told her she didn’t have to go back she was immediately normal again,” Lopez said. “She wasn’t throwing up. She wasn’t having panicky kind of attacks. She was just back to normal.”

Lopez shared her daughter’s experience at a Wichita school board meeting in June. Close to a dozen Wichitans spoke about adding gender identity and sexual orientation to the district’s nondiscrimination policy. Most were in favor of doing so.

They included transgender veteran and teacher Kendall Hawkins. She was in the Army when the military began to adopt some protections for LGBTQ troops.

“The army became better for it because it was more reflective of the diversity in our armed services,” Hawkins told the board. “Changing our nondiscrimination policy to include gender identity and expression and sexual orientation will have the same effect here in our school.”

A smaller number of the speakers opposed adding protections on moral objections. One speaker was worried about indoctrination. Another spoke about her religious beliefs.

“As they quote frequently, Jesus loves them,” said Wichitan Jeanne Garrelts. “And this is true. But he does have standards of right and wrong.”

Legal Worries

After months of discussions with staff members, the Wichita school board voted 5-2 in favor of a statement saying the district wouldn’t discriminate against LGBTQ students and staff.

In reaction, board member Mike Rodee resigned at the end of the meeting, though he rescinded his resignation the next day.

Rodee was worried that if the district fired a staff member because of the policy, the ex-employee could turn around and sue the district. He pointed to a teacher in Virginia suing his former school after being fired for not using a student’s preferred pronouns.

“This scares me,” Rodee said.” I don’t want to be reading about this in CNN that we got sued for $10 million cause we did something wrong.”

But legal experts say a lawsuit is unlikely.

“I would not put a policy like this as in even the top 20 things that are likely to get a school board sued,” said Michigan State University Law professor Frank Ravitch.

A lawsuit on First Amendment grounds is possible. But legal experts say public employees have limits on those rights.

There’s also Title IX, the federal law banning sex-based discrimination at schools. Courts have often interpreted that to include gender identity and sexual orientation, according to legal experts.

The same experts also say that schools are more likely to face a lawsuit if they don’t protect LGBTQ students and staff from discrimination.

“Title IX is fairly well entrenched in our legal framework and our legal landscape and has been providing these protections to LGBT students for many years at this point,” said University of Kansas law professor Kyle Velte.

Because of that, some experts say schools don’t need their own policies.

But a recent Kansas anti-bullying task force reported that LGBTQ students are more likely to be targeted by bullying. The task force recommends specific local policies to protect those students.

Supporters hope recent action by some Kansas school districts will send a signal of support that could safeguard LGBTQ students still bullied in Kansas schools.

Stephan Bisaha reports on education and young adult life for the Kansas News Service. You can follow him on Twitter @SteveBisaha or email him at bisaha (at) kmuw (dot) org. The Kansas News Service is a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio focused on the health and well-being of Kansans, their communities and civic life.

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