[Congressional Record Volume 157, Number 36 (Thursday, March 10, 2011)]
[Senate]
[Pages S1557-S1559]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FRANKEN (for himself, Mr. Harkin, Mr. Kerry, Mrs. Murray, 
        Ms. Klobuchar, Mr. Merkley, Mr. Durbin, Mr. Lautenberg, Mr. 
        Bennet, Mr. Blumenthal, Mr. Udall of Colorado, Ms. Mikulski, 
        Mr. Leahy, Mr. Sanders, Mr. Bingaman, Mr. Whitehouse, Mr. 
        Cardin, Mrs. Boxer, Mrs. Gillibrand, Mr. Menendez, Mr. Akaka, 
        Mr. Schumer, Mr. Wyden, Mr. Begich, Mr. Casey, Ms. Cantwell, 
        Mr. Brown of Ohio, Mrs. Shaheen, Mr. Reed, and Mr. Coons):
  S. 555. A bill to end 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, I wish to tell you about a teenager whom 
I think you know about--Justin Aaberg--from our home State of 
Minnesota. Yesterday should have been Justin's 16th birthday. Justin 
was a kind young man, friendly and cheerful, a budding composer, but he 
was also the target for bullies at his high school, who targeted him 
because he was different--because he was gay.
  I never had the opportunity to meet Justin. His family lost him to 
suicide last summer. The Presiding Officer knows that. But you and I 
have been privileged to meet his mother Tammy. I have been privileged 
to meet her a few times. She is incredible. She has been speaking out 
to protect other kids. Because, unfortunately, there are a lot of other 
kids out there struggling to get through school as they suffer from 
bullying and harassment and discrimination at their public schools. 
Nine out of ten LGBT students are harassed or bullied or taunted in 
school. This harassment deprives them of an equal education. They are 
more likely to skip school, they are less likely to perform well 
academically, and they are more likely to drop out before they graduate 
from high school.
  In some tragic cases, such as Justin's, the harassment of LGBT 
students can even lead to suicide. We have seen this in all too many 
cases all over the country, because, sadly, this problem is so much 
broader than Justin. More than a third--more than a third--of lesbian, 
gay, and bisexual youth have made a suicide attempt. More than a third. 
That is horrifying beyond belief to me.
  We are failing these kids. That is why I, along with 29 of my Senate 
colleagues, including the Presiding Officer, have reintroduced the 
Student Nondiscrimination Act today. While Federal civil rights laws 
prohibit discrimination on the basis of race, color, sex, religion, 
disability, and national origin, they do not expressly cover sexual 
origin or gender identity. As a result, parents of LGBT students have 
limited legal recourse when schools fail to protect their children from 
harassment and bullying.
  You might be wondering why I am mentioning bullying and 
discrimination in the same breath. It is simple: When a school acts to 
protect kids with disabilities from bullying but looks the other way 
when LGBT kids are harassed by their peers, that is discrimination. 
When school staff members participate in or encourage bullying of LGBT 
youth, that is discrimination. When a principal excuses a bully who 
torments an LGBT kid with ``boys will be boys,'' this is discrimination 
and needs to stop. It needs to stop before more kids are hurt.
  The Student Nondiscrimination Act would prohibit discrimination and 
harassment in public schools based on sexual orientation and gender 
identity. It would give LGBT students similar civil rights protections 
against bullying and harassment as those that currently apply to 
students based on characteristics such as race and gender.
  This legislation would also provide meaningful remedies for 
discrimination in public schools based on sexual orientation or gender 
identity, modeled on Title IX's protection against discrimination and 
harassment based on gender. Fifty years of civil rights history shows 
that similar laws that contain such remedies are often most effective 
in preventing discrimination from occurring in the first place. Like 
other civil rights laws, the one we introduce today would prompt 
schools to

[[Page S1558]]

avoid liability by taking proactive steps to prevent the discrimination 
and bullying of students protected by the bill.
  I guarantee you that when this bill is passed, nearly every school 
district in this country is going to go to its lawyer and ask, ``How do 
we come into compliance?'' I guarantee you that the U.S. Department of 
Education will issue regulations, as it has under Title IX, so that 
schools have guidance in how to protect these kids. The goal isn't for 
any school to be sued for failing to protect kids from bullying and 
harassment. The goal isn't for any school to come under Department of 
Education scrutiny. The goal is for schools to do all they can to 
ensure these incidents never happen in the first place.
  Parents in Minnesota and across the country entrust their children to 
public schools with the understanding that these schools will do 
everything in their power to keep their children safe. When 9 in 10 
LGBT kids are bullied at school, when they are three times more likely 
than straight kids to feel unsafe at school, when one third of LGBT 
kids say they have skipped a day of school in the last month because of 
feeling unsafe, then we know that our public education system is not 
fulfilling its most basic obligation to parents to keep children safe. 
We have an obligation to do something about it.
  Yesterday, Justin Aaberg from Minnesota should have celebrated his 
16th birthday with family and friends. But instead, I know that his 
family and friends were missing him terribly--are still missing him 
terribly.
  No child should have to go through the pain that Justin went through 
at school. No mom or dad should have to go through the heartbreaking 
pain that Justin's family has gone through. It is time. It is time that 
we extend equal rights to LGBT students. We have the opportunity now, 
as we reform No Child Left Behind--the ESEA, the Elementary and 
Secondary Education Act--to include this legislation. Our children 
cannot afford for us to squander this opportunity. I urge my colleagues 
to join me today in supporting the Student Non-Discrimination Act and 
demanding protection 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. 555

       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 Non-Discrimination 
     Act of 2011''.

     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;
       (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.

     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 or 
     educational agencies, regarding conduct made unlawful by this 
     Act or reasonably believed to be made unlawful by this Act;

[[Page S1559]]

       (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 Non-Discrimination Act 
     of 2011,'' 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.
                                 ______