- The First Amendment protects both freedom of speech and expression.
- Schools may not restrain student speech unless it will reasonably substantially disrupt the school environment or harm others.1
- Schools cannot prevent students from expressing their identity or discussing same-sex families.
- Based on a Supreme Court decision, the First Amendment prevents school districts from censoring or removing books from school libraries “because they dislike the ideas contained in [the] books.”2
Title IX of the Education Amendments of 1972
- Title IX prohibits schools that receive federal financial assistance from limiting or denying
a student’s participation in any school program on the basis of sex.
- Based on court cases, this can be understood to prohibit discrimination, including sexual harassment, based on sex stereotypes, sexual orientation and gender identity or transgender status.
- For example, courts in Kansas, Connecticut, and New York have ruled that Title IX applies to gender identity.3
Equal Protection Clause of the 14th Amendment
- This clause guarantees every citizen equal protection under the law.
- This clause is frequently used to protect LGBTQ youth in schools who have faced unfair or discriminatory school actions.4
- This clause was also used in Brown vs. the Board of Education to strike down state-sponsored racial segregation in schools.5
Family Educational Rights and Privacy Act (FERPA)
- The Family Educational Rights and Privacy Act (FERPA) is a federal law that protects the privacy of student educational records.
- FERPA specifically prohibits the improper disclosure of personally identifiable information (PII) from students’ records.
- With regard to LGBTQ students, information relating to gender identity or sexual orientation may constitute personally identifiable information (PII) as an indirect identifier.6 Therefore, school officials should use caution and follow FERPA disclosure guidelines when considering the release of such information.
- Disclosure by school staff has the potential to create a hostile environment at school and can negatively impact a student’s life at home if the family is not supportive.
1Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969).
2Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853, 853 (1982).
3 Theno v. Tonganoxie Unified Sch. Dist. No. 464, 377 F. Supp. 2d 952 (D. Kan. 2005); Riccio v. New Haven Bd. of Educ., 467 F. Supp. 2d 219 (D. Conn. 2006); Pratt v. Indian River Cent. Sch. Dist., 803 F. Supp. 2d 135 (N.D.N.Y. 2011)
4 Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996).
5 Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954).
6 34 C.F.R. § 99.3.