All for One? - National Association of Secondary School Principals

LEADING QUESTIONSAll for One?Failure to protect students—gay, lesbian, orstraight—from harassment can lead to lawsuitsand personal liability for principals. Comprehensivepolicies, properly enforced, are in the best interestsof students and educators.BY KELLEY R. TAYLOR, ESQ.Without admitting wrongdoing,the Washoe County SchoolDistrict in Reno, NV, settled astudent harassment case for $451,000.As part of the August 2002 settlement,the district also agreed to amend someof their civil rights policies. DerekHenkle, a former Washoe County studentwho brought the case, is gay. Hisallegations, the resulting settlementand other similar cases prompt theoften divisive question whether schoolsare doing their part to protect gay andlesbian students from harassment anddiscrimination at school.To Be ExpectedIn 1988, Jamie Nabozny, who hadspent most of his life in Ashland, WI,graduated to middle school. Aboutthat same time, Nabonzy realized hewas gay and it wasn’t long before classmatesteased him about it. Other studentscalled him derogatory names, hithim, and spit on him. Seekingassistance, Nabozny spoke to theschool’s counselor, Mr. Peterson, whodisciplined the offending students.After a short interruption, the samestudents began teasing Nabozny again.By that time, a new counselor, Mr.Nowakowski, had been hired andNabozny sought his assistance, askingfor protection from the harassment.Nowakowski passed the matter on toMary Podlesny, then the principal ofAshland Middle School. In asubsequent meeting involvingNowakoswski and Podlesny, Naboznyrecounted the harassment, explainedthat he was gay (as he had to Petersonand Nowakowski on previousoccasions), and asked for protection.Podlesny assured Nabozny that hewould be protected, but no furtheraction was taken.Soon the harassment of Naboznyby other students (two in particular)intensified. After being pushed to thefloor and having a mock rapeperformed on him by other studentsduring science class, Nabozny fled toPodlesny. Allegedly, she informedNabozny that “boys will be boys” andgiven his openly gay status, he should“expect” such behavior from other students.Although the mock rape tookplace in front of 20 other students, noone was punished except Nabozny—for running home that afternoon withoutobtaining school permission.Nabozny’s abuse continued intothe next year when he was assaultedin the boys’ bathroom. Once again,the principal told Nabozny, and thistime his parents, that this behaviorPHOTO ILLUSTRATION BY JESSE CHENGJANUARY 2003 65

LEADING QUESTIONSshould be expected. The harassmentcontinued, as did meetings withNabozny, Nabozny’s parents, andPodlesny. In every instance, Podlesnytook no action. Nabozny attemptedsuicide and attempted to changeschools before having to re-enroll inAshland High School where he wasurinated on in the boys’ bathroom andbeaten severely in the school hallway.During that time, the AshlandHigh School principal, assistant principal,guidance counselor, police liaison,and school official in charge ofdiscipline all in some way or anotherdisregarded the abuse. In fact, the officialin charge of school discipline,Blauert, reportedly laughed whenNabozny suffered an in-school beatingthat lead to internal bleeding, sayingthat Nabozny deserved the treatmentas a result of being gay.By the time Nabozny withdrewfrom Ashland High School, he was an11th-grade student who had beenbeaten, hit with nuts and bolts, spit on,verbally harassed, placed in special educationclasses with his harassers, andlaughed at and ignored by school officials.He twice attempted suicide andwas diagnosed with post-traumaticstress disorder.In 1995, Nabozny filed suit againstPodlesny, Davis, Blauert, and theschool district, alleging violation of hisconstitutional rights to equal protectionand due process. The district courtruled in favor of the defendants(dismissing the case without a trial),but the U.S. Court of Appeals for theSeventh Circuit (covering Illinois, Indiana,and Wisconsin) overturned thatdecision in 1996. In doing so, theCourt of Appeals ruled that publicschools and school officials could beheld individually liable for failing toaddress student-to-student anti-gayharassment and discrimination.Additionally, the court made animportant statement that “the EqualProtection Clause does...require thestate to treat each person with equalregard, as having equal worth, regardlessof his or her status.” The SeventhCircuit ruling led to Nabozny winninga $900,000 out-of-court settlementagainst the three school administratorsnamed in the appeal.Nabozny was a seminal case forholding school administrators liablefor failing to deal effectively andappropriately with student-to-studentanti-gay harassment. In the years sincethat ruling, many similar cases in variousstates have been filed by gaystudents who have allegedly sufferedharassment at the hands of fellow studentswithout appropriate schoolattention or intervention. The 2002case involving Derek Henklementioned in the introduction to thisarticle is only one of many. The seemingregularity of such harassment inschools makes it important that schoolleaders fully understand their duty tosafeguard the civil rights of allstudents.Matters of OpinionOften, individual opinions eclipse fundamentallegal principles that delineateschool officials’ responsibilities. Giventhe highly sensitive and usually inharmoniousviewpoints surroundinghomosexuality proper procedure issometimes skewed in school-relatedmatters involving gay and lesbian students.A situation involving the EqualAccess Act, a federal law that requiresschool officials to treat student clubsand organizations equally with regardto access to school resources, serves asillustration.In August 1999, a student at ElModena High School in OrangeCounty, CA, decided to form a Gay-Straight Alliance (GSA) club at theschool. In accordance with school policy,the student submitted to schoolofficials a proposed club constitutionalong with other required paperwork.That stated purpose of the group wasto “promote interest in a supportivecommunity amongst peers.” Duringclub meetings, members planned toengage in discussion and attendlectures, field trips, and other activitiesto raise public awareness and promotetolerance. Membership would be opento all students whether gay or straight.The school’s policy allowedstudent-initiated groups to meet onschool grounds during lunch and touse school facilities to publicize meetingsand activities. At the time, theschool had 38 non-curriculum-relatedstudent groups, including an AsianClub, the Black Student Union, aChristian Club, and a Girls League.As a result, the student felt confidentthat his application would beapproved.Unfortunately, the school’s principalforwarded the student’s applicationto the assistant superintendent.This was not normal procedure forapproval of such an application.What ensued were months of wranglingbetween the student andschool officials, with school officialsasking the student to change thename of the club, holding publicforums on whether the club shouldbe approved, and finally denying theclub’s application. The student,Anthony Colin, and the GSA laterfiled suit against the Orange CountyUnified School District, the schoolboard, and the principal alleging violationof their rights under federallaw and the U.S. Constitution. Followingan evidentiary hearing, ajudge granted the plaintiff’s requestfor an injunction. In doing so, heordered the school to allow theGSA to meet on school groundswith the same equal access to schoolfacilities that the school grantedother student clubs.Colin is a good example of howa school administrator’s decisionsconcerning students can be affectedby compelling yet subjective individualmoral opinions and views. Moreimportantly, Colin, Nabozny, andHenkle serve to highlight an important66 P RINCIPAL L EADERSHIP

LEADING QUESTIONSthat formulating and implementingsound policies is crucial. When policiesare established, adhered to, andapplied in an even-handed manner, itis difficult for a court to find a schooladministrator personally liable. Withthis in mind, formulating a comprehensive,easily understood and properlyenforced policy—whethergoverning harassment, equal access, orother school-related issues— is aessential step toward limiting liabilityfor denial of equal treatment andimproving the level of safety in theschool environment.In laying the foundation for yourschool’s policy, it is advisable to firstdevelop a convincing and effectivephilosophy about the issues that arethe subject of the policy. For example,in the case of discrimination andharassment, a “no tolerance”approach, applicable to all persons inthe school, may be advisable. Withrespect to equal access, the policyshould clearly state the school’s positionrelated to student clubs andorganizations. At all times, whendeveloping policy, your legal duty toprotect students and to make school asafe and learning conductive environmentshould be your guide.Although important, policy developmentis only one part of the processof curbing harassment and discriminationand ensuring equal treatment inschool. Indeed, having policies that arenot properly enforced is akin to nothaving policies at all. In suits broughtagainst school officials for failure toprotect students from harassment ordiscrimination, a key question will bewhether the action taken in response tothe complaint was actually effective. Asa result, investigation, documentation,and follow-up should be undertaken inall instances. Establish an adaptableinvestigative process and thorough documentationand follow-up procedures.All school policies should alsoset forth fair and comprehensivegrievance procedures. Although“When policies are established, adhered to, and appliedin an even-handed manner, it is difficult for a court tofind a school administrator personally liable.specific investigative procedures mayvary, all investigations should betimely, detailed, and impartial. Allcomplaints, including rumors, shouldbe heeded. At all times your goalshould be fair and appropriate resolutionof complaints with a tough butaccommodating approach thatrespects confidentiality and includesappropriate and effective correctiveaction.It is also extremely important todocument every step of an investigation.Good records may illuminatepatterns, practices, or otherwise pervasivesituations among particularstudents. Moreover, solid documentationcan be useful in the event of alawsuit. Beyond investigation anddocumentation is follow-up—one ofthe most important phases of the policyenforcement process. Follow-upinvolves notification to parties of theoutcome of the investigation and mayalso involve appeals or provisions ofother support services to thoseinvolved.A Common ConcernBullying and harassment of students isnot a new phenomenon. We all probablyrecall being teased or bothered byclassmates. Some of us chalked it up to“growing pains” while others had morepainful experiences not so easily forgotten.The reality is that many studentsdread a day at school where they worryabout being harassed or discriminatedagainst by fellow students in ways thatseverely interfere with their ability tolearn. So what are schools doing aboutit? With specific regard to gay andlesbian students, a number of schoolboards, districts, and states haveamended their education codes tospecifically include prohibitions ondiscrimination against and harassmentof gay and lesbian students and facultymembers. Some schools—such as thosein the Houston Independent SchoolDistrict—have gone further, holdingtraining sessions to encourage tolerance.Other schools and districts have taken adifferent approach (e.g., opting to prohibitpositive references to homosexualityor to eliminate all cocurricularstudent clubs and organizations ratherthan allow Gay-Straight Alliances).In the end, harassment andbullying of any student is not easilyprevented and school officials alonecannot curb the problem. However,compassionate and effective schoolleaders understand that the mistreatmentby peers that some studentsencounter in school transcends peerridicule that was (and still is) oftendismissed as “innocent” or “typical.”Those school leaders know thatregardless of the reason for theharassment, students and parentslook to school administrators totake such complaints seriously andto make every reasonable effort tomake schools safe places where allstudents are supported and able toobtain an education. PLResources❏ Curtis, K. (August 29, 2002).Schools pay harassed gay student$451,000 [Electronic version]. ChicagoSun Times.❏ Hewitt, P. (April 3, 2002). Seekingtolerance [Electronic version]. HoustonChronicle.❏ Nabozny v. Podlesny, Davis, Blauert,et al. 92 F.3d 446 (7th Cir. 1996).Kelley R. Taylor, Esq., (Taylor_KR@msn.com) is a corporate attorney andfreelance writer based in Virginia.68 P RINCIPAL L EADERSHIP