[Congressional Record Volume 156, Number 77 (Thursday, May 20, 2010)]
[Senate]
[Pages S4084-S4087]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. FRANKEN (for himself, Ms. Miklulski, Mr. Merkley, Mrs.
Gillibrand, Mr. Kerry, Mr. Harkin, Mr. Casey, Mrs. Murray, Mr.
Bingaman, Mr. Feingold, Mr. Cardin, Mr. Sanders, Ms. Cantwell, Mr.
Brown of Ohio, Mr. Dodd, Mr. Begich, Mr. Durbin, Mr. Lautenberg, Mr.
Leahy, Mr. Menendez, Mr. Whitehouse, Mr. Wyden, Mr. Akaka, and Ms.
Klobuchar):
S. 3390. A bill to end the discrimination based on actual or
perceived sexual orientation or gender identity in public schools, and
for other purposes; to the Committee on Health, Education, Labor, and
Pensions.
Mr. FRANKEN. Mr. President, all men are created equal. Our Nation's
greatest leaders, like Thomas Jefferson, Susan B. Anthony, and Martin
Luther King, Jr. have shaped the course of our history by furthering
our understanding of this principle. It is because of their struggle to
illuminate it that we now live under a system of laws that provides
equal protection to Americans, regardless of their race, gender, or
religion. It is because of their chutzpah that I, a Jew, can stand
before you today as a United States Senator.
But there is one group for whom our realization of that principle has
not advanced quickly enough. Gay Americans continue to be treated as
second-class citizens in our society and under our laws. Nowhere is the
unequal treatment of gay Americans more destructive than in our
nation's public schools.
Currently, Federal law provides no explicit protection to gay
students against discrimination and harassment. While Federal civil
rights statutes prohibit discrimination and harassment against students
based on race, sex, religion, and national origin, these laws do not
explicitly address sexual orientation or gender identity.
To remedy this injustice, I and 22 of my Senate colleagues are
introducing the Student Non-Discrimination Act today. This legislation
will prohibit schools from discriminating against or ignoring the
harassment of students based on their sexual orientation or gender
identity. The bill would also provide meaningful remedies for such
discrimination, modeled on Title IX.
These protections are sorely needed. Let me tell you a sad fact--
nearly nine out of ten LGBT students are harassed in school. This
harassment deprives them of an equal education. Rochelle, a gay high
school student from California who was harassed in school, explains why
with a simple question. She asks, ``How was I supposed to learn when I
was constantly scared?'' For students like Rochelle, school is not a
place to learn. Rather it is a place to be bullied, beaten down, and
humiliated. It is no wonder that gay students who are harassed in
school are more likely to skip school, underachieve, and eventually
drop out.
In its worst form, the harassment of LGBT students can lead to life-
threatening violence and suicide. We have
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seen this in all too many high-profile cases in recent years, such as
that of Carl Walker Hoover, an 11-year-old boy from Massachusetts who
hung himself last April. Before he committed suicide, Carl was taunted
by his classmates on a daily basis for allegedly being gay despite his
mother's weekly pleas to his school to address the problem. Carl's
death came only about a year after Lawrence King, an eighth grader in
California, was shot and killed by a classmate for allegedly being gay.
To be clear, it is not simply students who are to blame for the
harassment of their gay classmates. Students who harass their gay peers
have often internalized the anti-gay bias of the adults around them.
Sometimes their bullying is even condoned by adults at school--through
the silence of school staff who witness the bullying or through their
encouragement of the behavior.
This was certainly the case for Alex, a 16-year-old boy from Anoka,
MN, whose teachers mocked him in front of his classmates for allegedly
being gay. When Alex mentioned Benjamin Franklin in a paper, his social
studies teacher taunted him for ``having a thing for older men.'' A
second teacher who taught a course on law enforcement volunteered Alex
for a student fashion show, joking that Alex ``loves to dress in
women's clothes.'' Alex's peers soon caught on to the joke, and began
taunting him too. The harassment grew so severe that Alex eventually
switched schools.
Because Alex lives in Minnesota--one of 14 States that prohibit
discrimination based on sexual orientation in school--Alex and his
family were able to hold his school district accountable. They filed a
complaint with the Minnesota Department of Human Rights. After the
Department found that Alex had been subjected to ``severe and
pervasive'' harassment, the school district settled the case. The
district provided Alex and his family financial compensation, and
adopted new rules to prevent the harassment of LGBT students.
Minnesota's law is effective not only because it holds school
districts accountable for discrimination, but also because it provides
a powerful incentive for districts to adopt policies to prevent
discrimination from occurring in the first place.
It is time that we extend the equal rights afforded to Minnesota
students to students all across the country. No student should be
subjected to the ridicule and physical violence that LGBT students so
often experience in school. I urge my colleagues to join me today in
supporting the Student Non-Discrimination Act. It is time we demanded
equal treatment for all of our children under the law.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 3390
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Student Nondiscrimination
Act of 2010''.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--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) Purposes.--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; and
(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.
SEC. 3. DEFINITIONS AND RULE.
(a) Definitions.--For purposes of this Act:
(1) Educational agency.--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) Gender identity.--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) Harassment.--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) Program or activity.--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) Public school.--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) Sexual orientation.--The term ``sexual orientation''
means homosexuality, heterosexuality, or bisexuality.
(7) Student.--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) Rule.--Consistent with Federal law, in this Act the
term ``includes'' means ``includes but is not limited to''.
SEC. 4. PROHIBITION AGAINST DISCRIMINATION.
(a) In General.--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) Harassment.--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) Retaliation Prohibited.--
(1) Prohibition.--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) Definition.--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
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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.
SEC. 5. FEDERAL ADMINISTRATIVE ENFORCEMENT; REPORT TO
CONGRESSIONAL COMMITTEES.
(a) Requirements.--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) Enforcement.--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) Reports.--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.
SEC. 6. CAUSE OF ACTION.
(a) Cause of Action.--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) Rule of Construction.--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) Statute of Limitations.--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.
SEC. 7. STATE IMMUNITY.
(a) State Immunity.--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) Waiver.--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) Remedies.--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.
SEC. 8. ATTORNEY'S FEES.
Section 722(b) of the Revised Statutes (42 U.S.C. 1988(b))
is amended by inserting ``the Student Nondiscrimination Act
of 2010,'' after ``Religious Land Use and Institutionalized
Persons Act of 2000,''.
SEC. 9. EFFECT ON OTHER LAWS.
(a) Federal and State Nondiscrimination Laws.--Nothing 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
Groups.--Nothing 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).
SEC. 10. SEVERABILITY.
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.
SEC. 11. EFFECTIVE DATE.
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.
Mr. LEAHY. Mr. President, I am proud to join Senator Franken in
sponsoring the Student Non-Discrimination Act of 2010, SNDA, an
important step in our march toward a more inclusive Nation. This bill
continues the civil rights work we began earlier this Congress when I
offered the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention
Act as an amendment to the defense authorization bill last year. The
Student Non-Discrimination Act will ensure that under Federal law, all
public school children are protected equally from discrimination.
Children deserve a safe environment where they can learn the skills and
knowledge necessary to be good citizens.
More than 55 years ago, in the landmark case of Brown v. Board of
Education, the Supreme Court reaffirmed our Nation's commitment to
justice and equal rights for all Americans by ending racial segregation
in our public schools. A unanimous Court recognized that ``it is
doubtful that any child may reasonably be expected to succeed in life
if he [or she] is denied the opportunity of an education. Such an
opportunity, where the state has undertaken to provide it, is a right
which must be made available to all on equal terms.''
Congress continued on the path of progress by passing laws like the
Civil Rights Act of 1964, the Education Amendments of 1972, and the
Rehabilitation Act of 1973. These laws protected students in federally-
funded public schools from discrimination and harassment based on race,
national origin, sex, and disability. President John F. Kennedy said in
1963, ``Simple justice requires that public funds, to which all
taxpayers . . . contribute, not be spent in any fashion which
encourages, entrenches, subsidizes or results in . . .
discrimination.''
Tragically, for far too long, U.S. taxpayer dollars have gone to
public school systems that tolerate or perpetuate discrimination,
harassment, and even violence based on sexual orientation and gender
identity. To paraphrase Dr. Martin Luther King, Jr., ``now is the time
to make justice a reality'' for all of our children--now is the time
for Congress to extend existing Federal protections against
discrimination to all public school students.
The legislation we introduce today does just that by prohibiting
discrimination and harassment based on actual or perceived sexual
orientation and gender identity in public, non-religious, federally-
funded schools.
Vermont has recognized the importance of creating a safe school
environment for our children. In 1993, the State legislature enacted a
law to protect school children from harassment based on sexual
orientation, and in 2007, the law was strengthened to protect against
harassment based on gender identity. Nine other States and the District
of Columbia protect school children from discrimination based on
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gender identity and sexual orientation. This legislation makes clear
that it would not preempt state laws such as those in Vermont, which
provide additional protections and remedies.
The Student Non-Discrimination Act also preserves our First Amendment
freedoms of expression and religion. The bill is narrowly tailored to
comply with the Supreme Court's First Amendment precedents. It includes
provisions that explicitly exempt parochial schools, and to make clear
that religious groups in public schools continue to be protected by the
First Amendment and the Equal Access Act.
I urge all Senators to come together to support this important bill
to ensure that all of our students are given the opportunity to
succeed, free from harassment or discrimination.
______