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SB 777 Challenge Dismissed

Student Harassment Law Remains In Place

By Brett McFadden, ACSA - June 5, 2009

This week, a Sacramento County Superior Court judge on tossed out a lawsuit against a state law that forbids harassment of public school kids because of their gender or sexual identity.  The lawsuit was filed last year by the California Education Committee (a conservative public interest group).  The lawsuit alleged that SB 777 (approved in 2007) would allow students to enter each others' locker rooms and was too vague to be properly implemented by school officials.  Sacramento Superior Court Judge Shelleyanne W.L. Chang's ruling stated that plaintiffs had failed to make their case.

As a result, current law (SB 777) remains in place.  Local Educational Agencies (LEAs) should continue with current policy and implement the statute accordingly.  Below is a 2007 advisory from the Association of California School Administrators (ACSA) on the matter. 

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December 20, 2007

TO:       ACSA Members and Interested Parties

FROM:  Brett McFadden, ACSA Management Services Executive

RE:       ACSA Management Advisory:
            SB 777 (Kuehl)—Student Civil Rights Act

Editor’s Note: The legal aspects of this advisory were reviewed by the Education Law Practice Group attorneys of Atkinson, Andelson, Loya, Ruud & Romo.  This effort was coordinated by Anthony DeMarco, Associate with the firm.  ACSA extends its thanks and gratitude to Mr. DeMarco and his colleagues for their assistance with this advisory.

A recently adopted state legislative measure has garnered significant attention and fostered considerable controversy in recent weeks.  This advisory is intended to provide education leaders background information and policy/program implementation recommendations.

Background

SB 777 (Kuehl) — The Student Civil Rights Act — was signed into law by Governor Schwarzenegger at the end of the 2007 state legislative session.  Since then, organizations throughout the state have launched a signature-gathering effort to initiate a statewide ballot referendum seeking to overturn the measure.  In addition, opponents of SB 777 have sponsored a series of protests and other advocacy strategies to highlight their position to the measure.  These have included “keep your kids at home” days, presentations to school boards, protests in front of LEAs and/or school sites, and presentations to local churches, just to name a few.  Due in part to these actions, SB 777 has attracted considerable attention, and evoked varying statements in regard to its status and effect.  ACSA was and remains neutral on the measure, viewing it as a clarification of existing law.

The immediate history of this issue dates back to the enactment of AB 537 (Kuehl) — The California Student Safety and Violence Prevention Act of 2000.  In that measure, the Legislature banned harassment and discrimination in California public schools and universities on the basis of characteristics contained in the prohibition of hate crimes set forth in Penal Code Section 422.5.  Those characteristics included: actual or perceived disability, gender, nationality, race or ethnicity, religion, sexual orientation or association with a person who has any of these characteristics.  Although discrimination on the basis of several of these characteristics was already prohibited in public education, the safe schools law enacted in 2000 added new protections against discrimination on the basis of sexual orientation and gender including gender related identity, appearance and behavior.  AB 537 also incorporated the concepts of “actual or perceived” and “association with” into student civil rights protections.

AB 537 amended the global prohibitions against discrimination contained in Education Code Sections 200 & 220 for K-12 schools and Education Code Sections 66250 & 66270 for institutions of higher education.  It did not, however, update a number of more specific prohibitions against discrimination scattered throughout the Education Code.  SB 777’s author argues that these sections have not been updated to reflect the state’s evolving civil rights protections for students.  One example offered by the author is that Education Code Section 235 related to charter schools prohibits “racial, sex or ethnic discrimination,” but makes no mention of disability, nationality, religion or sexual orientation, despite the legal obligation of charter schools to not discriminate on these bases.  ACSA supported AB 537.

What does the bill do?

According to the author’s office, the intent of SB 777 was to clean up and further clarify existing civil rights protections for California students.  The bill seeks to clarify the parameters of those protections by providing a list of prohibited bases of discrimination in publicly funded K-12 schools and institutions of higher education.  The bill added this list of prohibited bases of discrimination to existing global prohibitions against discrimination contained in Education Codes 220 and 66270.  The bill then updated a number of more specific prohibitions against discrimination scattered throughout the Education Code to reference the updated global prohibitions against discrimination contained in Education Code Section 220 and 66270.  Finally, the measure replaces the Education Code’s references to “handicapped students” with the more up-to-date terminology “students with disabilities.”

The author believed the bill was necessary to ensure that the Education Code was consistent across the board.  Specific directives against discrimination in various sections of the code are subsumed by and subordinate to the global prohibitions against discrimination contained in Education Code Section 220 and 66270.  However, Senator Kuehl argued that exclusion of these characteristics in specific sections of the Education Code created confusion and uncertainty when members of the education community consult those sections of the code to understand their obligations.  The governor and a majority of the Legislature concurred with these arguments and adopted the measure.

Arguments in opposition

Opponents have argued the following in letters and public comments:

  1. This bill would ban any instruction or activities in schools that reflect adversely upon homosexuals, transgender individuals and bisexuals, and therefore any teaching promoting traditional families would be discriminatory.
  2. Any activities such as having a prom king and queen, or utilizing gender-specific bathroom would also be considered discriminatory.
  3. Teachers won’t be able to mention “mom and dad,” but must instead say parents because this could be interpreted as being discriminatory.

ACSA’s policy and legal perspectives

ACSA continues to believe that SB 777 is a clarification of existing law.  Existing law forbids LEAs from discriminating against students based on actual or perceived gender, sex, race, ethnicity, color, national origin, nationality, religion, mental or physical disability, or sexual orientation.  For nearly all of these characteristics, the prohibition applies as well to discrimination based on a perception of the characteristic or association with a person or group with the actual or perceived characteristic.

Notwithstanding potential areas for clarification to address the above-stated arguments in opposition, ACSA does not believe the bill significantly alters existing K-12 curriculum, instruction, or LEA and school site operations pertaining to activities taking place during and/or after instructional hours.  The most significant changes to K-12 student civil rights actually occurred in AB 537 in 2000.  To the extent applicable to SB 777, it would seem that the opposition’s arguments would have likely materialized after passage of AB 537.  Possible legal challenges cited by opponents could develop with or without the enactment of SB 777. 

Indeed, the California Department of Education addressed some of these same issues (e.g. that gender specific bathrooms remained lawful) in a 2004 legal advisory, and then-State Superintendent for Public Instruction, Delaine Eastin, commissioned a task force comprised of representatives from all aspects of society to review the impacts of AB 537 and make recommendations.  Guidance regarding the impact of SB 777 on such issues could provide the necessary clarification to assuage any potential issues of contention.  It is certainly possible that the bill could indirectly fuel broader political or legal debates on related social issues, but these discussions are not directly manifested by the enactment of SB 777.

Education leaders are encouraged to review their current anti-discrimination and anti-harassment policies to ensure they are up-to-date and in accordance with federal and state laws.  Education leaders should also continue to pursue proactive programs and policies that foster safe and open education environments for all students.  Should SB 777’s enactment be stayed due to ballot referendum, then enactment of the measure will be determined via statewide ballot.  If the referendum effort is not successful, then the measure will take effect January 1, 2008.  Either way, LEAs will continue to be subject to existing statutes (Education Code Section 200 and 220) pertaining to student protections and civil rights.  As such, SB 777 should not result in significant changes in how LEAs and school sites comply with and enforce existing federal and state laws pertaining to anti-discrimination, anti-harassment, and student civil rights.

For additional information on this matter, contact ACSA Management Services Executive Brett McFadden at bmcfadden@acsa.org.