1.This Act may be cited as the
Student Non-Discrimination Act of
2011
.
2.
(a)The Congress finds the following:
(1)Public school
students who are lesbian, gay, bisexual, or transgender (referred to in this
Act as LGBT), or are perceived to be LGBT, or who associate with
LGBT people, have been and are subjected to pervasive discrimination, including
harassment, bullying, intimidation, and violence, and have been deprived of
equal educational opportunities, in schools in every part of the Nation.
(2)While
discrimination, including harassment, bullying, intimidation, and violence, of
any kind is harmful to students and to the education system, actions that
target students based on sexual orientation or gender identity represent a
distinct and especially severe problem.
(3)Numerous social
science studies demonstrate that discrimination, including harassment,
bullying, intimidation, and violence, at school has contributed to high rates
of absenteeism, dropping out, adverse health consequences, and academic
underachievement, among LGBT youth.
(4)When left
unchecked, discrimination, including harassment, bullying, intimidation, and
violence, in schools based on sexual orientation or gender identity can lead,
and has led, to life-threatening violence and to suicide.
(5)Public school
students enjoy a variety of constitutional rights, including rights to equal
protection, privacy, and free expression, which are infringed when school
officials engage in or are indifferent to discrimination, including harassment,
bullying, intimidation, and violence, on the basis of sexual orientation or
gender identity.
(6)While Federal statutory provisions
expressly address discrimination on the basis of race, color, sex, religion,
disability, and national origin, Federal civil rights statutes do not expressly
address discrimination on the basis of sexual orientation or gender identity.
As a result, students and parents have often had limited recourse to law for
remedies for discrimination on the basis of sexual orientation or gender
identity.
(b)The
purposes of this Act are—
(1)to ensure that all students have access to
public education in a safe environment free from discrimination, including
harassment, bullying, intimidation, and violence, on the basis of sexual
orientation or gender identity;
(2)to provide a
comprehensive Federal prohibition of discrimination in public schools based on
actual or perceived sexual orientation or gender identity;
(3)to provide
meaningful and effective remedies for discrimination in public schools based on
actual or perceived sexual orientation or gender identity;
(4)to invoke congressional powers, including
the power to enforce the 14th Amendment to the Constitution and to provide for
the general welfare pursuant to section 8 of article I of the Constitution and
the power to make all laws necessary and proper for the execution of the
foregoing powers pursuant to section 8 of article I of the Constitution, in
order to prohibit discrimination in public schools on the basis of sexual
orientation or gender identity; and
(5)to allow the
Department of Education to effectively combat discrimination based on sexual
orientation or gender identity in public schools, through regulation and
enforcement, as the Department has issued regulations under and enforced title
IX of the Education Amendments of 1972 and other nondiscrimination laws in a
manner that effectively addresses discrimination.
3.
(a)For purposes of this Act:
(1)The term educational agency means a local
educational agency, an educational service agency, and a State educational
agency, as those terms are defined in section 9101 of the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 7801).
(2)The term gender identity means the
gender-related identity, appearance, or mannerisms or other gender-related
characteristics of an individual, with or without regard to the individual’s
designated sex at birth.
(3)The term harassment means
conduct that is sufficiently severe, persistent, or pervasive to limit a
student's ability to participate in or benefit from a program or activity of a
public school or educational agency, or to create a hostile or abusive
educational environment at a program or activity of a public school or
educational agency, including acts of verbal, nonverbal, or physical
aggression, intimidation, or hostility, if such conduct is based on—
(A)a student’s actual
or perceived sexual orientation or gender identity; or
(B)the actual or perceived sexual orientation
or gender identity of a person with whom a student associates or has
associated.
(4)The terms program or activity and
program have the same meanings given such terms as applied under
section 606 of the Civil Rights Act of 1964 (42 U.S.C. 2000d–4a) to the
operations of public entities under paragraph (2)(B) of such section.
(5)The term public school means an elementary
school (as the term is defined in section 9101 of the Elementary and Secondary
Education Act of 1965) that is a public institution, and a secondary school (as
so defined) that is a public institution.
(6)The term sexual orientation means
homosexuality, heterosexuality, or bisexuality.
(7)The term student means an
individual who is enrolled in a public school or who, regardless of official
enrollment status, attends classes or participates in the programs or
activities of a public school or educational agency.
(b)Consistent with Federal law, in this Act
the term includes means includes but is not limited
to.
4.Prohibition
against discrimination
(a)No student shall, on the basis of actual or perceived
sexual orientation or gender identity of such individual or of a person with
whom the student associates or has associated, be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.
(b)For
purposes of this Act, discrimination includes harassment of a student on the
basis of actual or perceived sexual orientation or gender identity of such
student or of a person with whom the student associates or has
associated.
(c)
(1)No
person shall be excluded from participation in, be denied the benefits of, or
be subjected to discrimination, retaliation, or reprisal under any program or
activity receiving Federal financial assistance based on the person's
opposition to conduct made unlawful by this Act.
(2)For
purposes of this subsection, opposition to conduct made unlawful by this
Act includes—
(A)opposition to
conduct reasonably believed to be made unlawful by this Act;
(B)any formal or
informal report, whether oral or written, to any governmental entity, including
public schools and educational agencies and employees of the public schools or
educational agencies, regarding conduct made unlawful by this Act or reasonably
believed to be made unlawful by this Act;
(C)participation in
any investigation, proceeding, or hearing related to conduct made unlawful by
this Act or reasonably believed to be made unlawful by this Act; and
(D)assistance or
encouragement provided to any other person in the exercise or enjoyment of any
right granted or protected by this Act,
if in the
course of that expression, the person involved does not purposefully provide
information known to be false to any public school or educational agency or
other governmental entity regarding conduct made unlawful, or reasonably
believed to be made unlawful, by this Act.5.Federal
administrative enforcement; report to congressional committees
(a)Each Federal department and agency which is
empowered to extend Federal financial assistance to any education program or
activity, by way of grant, loan, or contract other than a contract of insurance
or guaranty, is authorized and directed to effectuate the provisions of section
4 with respect to such program or activity by issuing rules, regulations, or
orders of general applicability which shall be consistent with achievement of
the objectives of the statute authorizing the financial assistance in
connection with which the action is taken. No such rule, regulation, or order
shall become effective unless and until approved by the President.
(b)Compliance with any requirement adopted
pursuant to this section may be effected—
(1)by the termination
of or refusal to grant or to continue assistance under such program or activity
to any recipient as to whom there has been an express finding on the record,
after opportunity for hearing, of a failure to comply with such requirement,
but such termination or refusal shall be limited to the particular political
entity, or part thereof, or other recipient as to whom such a finding has been
made, and shall be limited in its effect to the particular program, or part
thereof, in which such noncompliance has been so found; or
(2)by any other means
authorized by law,
except that
no such action shall be taken until the department or agency concerned has
advised the appropriate person or persons of the failure to comply with the
requirement and has determined that compliance cannot be secured by voluntary
means.(c)In
the case of any action terminating, or refusing to grant or continue,
assistance because of failure to comply with a requirement imposed pursuant to
this section, the head of the Federal department or agency shall file with the
committees of the House of Representatives and Senate having legislative
jurisdiction over the program or activity involved a full written report of the
circumstances and the grounds for such action. No such action shall become
effective until 30 days have elapsed after the filing of such report.
6.
(a)Subject to subsection (c), an aggrieved individual may
bring an action in a court of competent jurisdiction, asserting a violation of
this Act. Aggrieved individuals may be awarded all appropriate relief,
including equitable relief, compensatory damages, and costs of the
action.
(b)This section shall not be construed to preclude an
aggrieved individual from obtaining remedies under any other provision of law
or to require such individual to exhaust any administrative complaint process
or notice of claim requirement before seeking redress under this
section.
(c)For actions brought pursuant to this section, the
statute of limitations period shall be determined in accordance with section
1658(a) of title 28, United States Code. The tolling of any such limitations
period shall be determined in accordance with the law governing actions under
section 1979 of the Revised Statutes (42 U.S.C. 1983) in the State in which the
action is brought.
7.
(a)A State shall not be immune under the 11th Amendment to
the Constitution from suit in Federal court for a violation of this Act.
(b)A
State’s receipt or use of Federal financial assistance for any program or
activity of a State shall constitute a waiver of sovereign immunity, under the
11th Amendment or otherwise, to a suit brought by an aggrieved individual for a
violation of section 4.
(c)In
a suit against a State for a violation of this Act, remedies (including
remedies both at law and in equity) are available for such a violation to the
same extent as such remedies are available for such a violation in the suit
against any public or private entity other than a State.
8.Section 722(b) of the
Revised Statutes (42 U.S.C. 1988(b)) is amended by inserting the Student
Non-Discrimination Act of 2011,
after Religious Land Use and
Institutionalized Persons Act of 2000,
.
9.
(a)Federal and
State nondiscrimination lawsNothing in this Act shall be construed to
preempt, invalidate, or limit rights, remedies, procedures, or legal standards
available to victims of discrimination or retaliation, under any other Federal
law or law of a State or political subdivision of a State, including title VI
of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the
Education Amendments of 1972 (20 U.S.C. 1681 et seq.), section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. 794), the Americans with Disabilities Act
of 1990 (42 U.S.C. 12101 et seq.), or section 1979 of the Revised Statutes (42
U.S.C. 1983). The obligations imposed by this Act are in addition to those
imposed by title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.),
title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), section
504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), the Americans with
Disabilities Act of 1990 (42 U.S.C. 12101 et seq.), and section 1979 of the
Revised Statutes (42 U.S.C. 1983).
(b)Free speech and
expression laws and religious student groupsNothing in this Act shall be construed to
alter legal standards regarding, or affect the rights available to individuals
or groups under, other Federal laws that establish protections for freedom of
speech and expression, such as legal standards and rights available to
religious and other student groups under the First Amendment and the Equal
Access Act (20 U.S.C. 4071 et seq.).
10.If any provision
of this Act, or any application of such provision to any person or
circumstance, is held to be unconstitutional, the remainder of this Act, and
the application of the provision to any other person or circumstance shall not
be impacted.
11.This Act shall take
effect 60 days after the date of enactment of this Act and shall not apply to
conduct occurring before the effective date of this Act.