[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

[[Page S4085]]

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

[[Page S4086]]

     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.
                                 ______