commentary
The gay agenda for the 2007-09 legislative session
Published Thursday, 30-Nov-2006 in issue 988
Beyond the Briefs
by Robert DeKoven
Our LGBT Legislative Caucus and its allies should focus on some actions and bills that we really need, considering same-sex marriage is now before the California Supreme Court.
Last year, the Legislature heard horror stories from GLBT students unable to get through school without suffering abuse. The governor vetoed a bill requiring the superintendent of public instruction to investigate and pursue complaints. The governor said the superintendent already has that power and hasn’t used it.
The LGBT Caucus should have the Assembly or Senate hold hearings with Superintendent Jack O’Connell and Attorney General Jerry Brown to find out what they can do to notify students about the complaint process and how these agencies will investigate complaints and undertake actions to remedy abuse.
Likewise, the Legislature should make it clear that emotional and physical abuse of any student is “child abuse” and mandated reporters have to report it to police. In particular, school officials must report hate crimes to police agencies. Failure to do so will result in criminal sanctions.
The law in this area seems fair right now, but it’s not explicit because school officials wrongly treat “hate crimes” as “mutual fighting,” which it is not.
When a student is charged with a hate crime or physical abuse, the Education Code should require the school to, at the very least, suspend the student from extracurricular activities. Yes, even if that means he can’t play football on Friday nights.
There are situations where openly GLBT students simply cannot study at a school because of pervasive and harsh harassment. Many of those pupils simply run away, often ending up at youth shelters that cater to GLBT youth.
Some school officials are not unhappy about that. It relieves the district from providing or paying for a safe learning place.
“The child simply can’t learn because others create such a hostile place that the student cannot even go to school for fear of physical or verbal harassment.”
Under California law, a school district is not obligated to pay for the student’s special educational needs unless the student has a physical, learning or “emotional” disability. So it’s not until battered GLBT kids display symptoms of depression, have panic attacks or are suicidal before the school district has to pay. That’s absurd.
California’s special education laws should mirror New Jersey’s. There, school districts must pay for educating a student at another school when the school district cannot provide a safe learning place for a particular student. In other words, the student can’t learn, though they don’t have a learning disability or physical disability. The child simply can’t learn because others create such a hostile place that the student cannot even go to school for fear of physical or verbal harassment.
Parents of GLBT kids who cannot attend school without hostility should be able to send their child to another school (public or private, even online). The school district must pay for the reasonable and appropriate education, no matter where it takes place. Our youth shelters (all over the state) should receive state support for the educational services they deliver.
At the college level, student financial aid has become a GLBT issue. Unlike their straight counterparts, it is more likely that GLBT students may have one or two parents who have abandoned them, not just emotionally but also financially.
So, yes, GLBT groups should push for increased funding for financial aid. And we should see that eligibility rules don’t discriminate against students who receive no support whatsoever from their parents.
More than a decade ago, I co-authored an ordinance passed by the city of San Diego preventing the city from doing business with groups that discriminate on the basis of sexual orientation. The City Charter also prohibits the city from contracting with groups or allowing such groups to use public property. The California Supreme Court recently affirmed the legality of such laws.
In a few weeks, no business can make a contract for goods and services with the state (worth $100,000 or more) unless the recipient offers something comparable to domestic partnership benefits. Further, state agencies cannot discriminate on the basis of sexual orientation.
Again, I think the law is clear here so that it prohibits, for example, state universities (UC and CSU) from entering into contracts and using state resources to play against teams that discriminate on the basis of sexual orientation (where one cannot be openly gay); for example, teams from BYU, the Air Force Academy or Baylor.
Robert DeKoven is a professor at California Western School of Law.
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