Letter to Superintendents: NE Students’ Rights to Equal Access and Right to Privacy

by | Oct 11, 2022 | Advocacy | 0 comments

Re: Students’ Rights to Equal Access and Right to Privacy

October 11, 2022

Dear Superintendent:

The ACLU of Nebraska and OutNebraska are non-profit, non-partisan organizations that share a dedication to protecting LGBTQ+ (lesbian, gay, bisexual, transgender, queer) Nebraskans’ civil rights and civil liberties, including the right to an education free from unlawful harassment and the right to have equal access to school facilities.

This month, as we celebrate both National Coming Out Day and the rich history of the LGBTQ+ community, we are writing to every school district to remind you of established federal and state law guaranteeing LGBTQ+ students’ rights and your obligation to protect their right to privacy. We hope you find this information helpful and consider sharing it with relevant school staff and officials, such as school board members. This information may be particularly relevant to you this month because we have lately received concerns from parents regarding their students’ right to privacy in the school setting.

According to the most recent GLSEN National School Climate Survey, the vast majority of LGBTQ+ students in schools face harassment and bullying based on their sexual orientation, gender, or gender expression. The survey also found that transgender and gender-nonconforming students had particularly hostile experiences.¹

Transgender students simply want the opportunity to fully participate in their schools, get a quality education, make friendships, and eventually graduate — just the same as their cisgender classmates. State and federal law requires that those opportunities be available, but more than that, supporting transgender students means more students are likely to graduate, go on to higher education and ultimately contribute to our communities. The GLSEN survey also found that LGBTQ+ students who had supportive school staff and inclusive school policies were less likely to be subject to anti-LGBTQ+ discrimination and harassment, had higher GPAs, and felt a greater sense of belonging in their community.² Supportive school policies and practices include – but are not limited to – the right to privacy and the right for all students to access school restrooms safely without discrimination or harassment.

FEDERAL LAWS: Federal law protects public school students from discrimination or harassment based on gender, race, color, religion, sex, national origin, or disability. See, e.g., Titles IV and VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation of 1973, Titles II and III of the Americans with Disabilities Act, and the Individuals with Disabilities Education Act. Title IX’s prohibition on discrimination on the basis of sex includes discrimination on the basis of sexual orientation and gender identity.³

Additionally, the Family Educational Rights and Privacy Act (FERPA) generally prohibits public school districts from releasing “personally identifiable information” from students’ education records without parents’ written consent.⁴ According to the Act’s regulations, personally identifiable information includes:

  • the student’s name,
  • the parent’s name, and
  • other “indirect identifiers,” or “other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.”⁵ This includes information regarding a student’s sexual orientation and gender identity and related requests for bathroom or locker room access.

STATE LAWS: The Nebraska State Constitution guarantees the right to a public school education for all persons between the age of 5 and 21 years. Neb. Const. art. VII-1.

Our state legislature has taken a firm stance against bullying. State law provides: “[b]ullying disrupts a school’s ability to educate students; and bullying threatens public safety by creating an atmosphere in which such behavior can escalate into violence.” Neb. Rev. Stat. § 79-2,137.

State law also specifically prohibits discrimination by schools on the basis of sex, including making it illegal to exclude a person from “any academic, extracurricular, research, occupational training, or other program or activity, except athletic programs,” on the basis of sex. Neb. Rev. Stat. § 79-2,116.

COURT DECISIONS: In addition to these state and federal laws, courts repeatedly have found that schools must intervene and help a student who is being bullied or harassed. Failure to protect a student who is accessing their constitutional right to attend school has resulted in liability for school officials. See, e.g., Nabozny v. Podlesny, 92 F.3d 446, 458 (7th Cir. 1996); Flores v. Morgan Hill Unified School District, 324 F.3d 1130, 1134–35 (9th Cir. 2003). School officials must take seriously the claims of harassment and fully and effectively resolve them. See Flores at 1135–36 (“Failure to take any further steps once he knew his remedial measures were inadequate supports a finding of deliberate indifference.”). Schools that have failed to intervene to protect the constitutional rights of LGBTQ+ students have had to pay hundreds of thousands of dollars in damages.

In addition to these cases requiring a school to intervene in bullying, there remains a long list of court decisions that have required schools to provide a transgender student with a restroom in accordance with their gender identity.⁶ As one federal judge wrote in her ruling permitting a transgender student to use the correct bathroom in Wisconsin, “A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non‐conformance, which in turn violates Title IX.”⁷

CONCLUSION: Educators have the incredibly important responsibility of not just teaching our children, but also protecting them while they learn. Parents trust teachers and all school staff to watch over our children where we cannot, to protect their privacy, and to promote a safe and enriching learning environment.

There are many excellent free resources to help school administrators and teachers learn more about how to support students who are transgender. You can find “Schools in Transition: A Guide for Supporting Transgender Students in K-12 Schools” online here:

https://www.aclu.org/report/schools-transition.

Many more frequently asked questions, model policies and training toolkit are available from Gender Spectrum:

https://www.genderspectrum.org/resources/education-2/#more-424.

We urge you to share this information with faculty, staff, and board members, and ensure that all are ready to guarantee an educational environment that is healthy and protective of all students and fosters respect for all students and staff of every race, ethnic origin, religion, gender, sexual orientation, gender identity and all other characteristics.

Please let us know if you believe we may assist you in this endeavor in any way.

Mindy Rush Chipman


ACLU of Nebraska Legal Director/Interim Executive Director

Abbi Swatsworth


OutNebraska Executive Director

Footnotes:

  1. GLSEN, The 2019 National School Climate Survey,
    https://www.glsen.org/sites/default/files/2021-04/NSCS19-FullReport-032421-
    Web_0.pdf.
  2. Id.
  3. See Bostock v. Clayton County, 140 S. Ct. 1731 (2020).
  4. 20 U.S.C. § 1232g(b)(1).
  5. 34 C.F.R. § 99.3.
  6. See, e.g., Mathis v. Fountain-Fort Carson Sch. Dist. 8, Charge No. P20130034X,
    at 10 (Colo. Div. of Civil Rights June 17, 2013), (school district discriminated
    against transgender girl based on her sex by not allowing her to use the girls’
    restroom); see also Hart v. Lew, 973 F. Supp. 2d 561, 581 (D. Md. 2013) (in Title
    VII employment discrimination case, allegation that employer repeatedly denied
    transgender female employee access to the women’s restroom, in conjunction
    with other discriminatory treatment, could establish a claim of sex
    discrimination);. Doe v. Regional Sch. Unit 26, 86 A.3d 600 (Me. 2014) (denying
    transgender girl use of the girls’ restroom at her school violated state’s Human
    Rights Act). Title IX has been the basis of court rulings in favor of transgender
    students all across the country. See, e.g., Pratt v. Indian River Cent. Sch. Dist.,
    803 F. Supp. 2d 135, 152 (N.D.N.Y. 2011); Doe v. Brimfield Grade Sch., 552 F.
    Supp. 2d 816, 823 (C.D. Ill. 2008); Montgomery v. Indep. Sch. Dist. No. 709, 109
    F. Supp. 2d 1081, 1090 (D. Minn. 2000). Grimm v. Gloucester Cty. Sch. Bd., 972
    F.3d 586, 616–20 (4th Cir. 2020), cert. denied, 141 S. Ct. 2878 (2021).
  7. Whitaker v. Kenosha Unified Sch. Dist., 858 F.3d 1034, 1049 (7th Cir. 2017).