The Right to Be Out: Sexual Orientation and Gender Identity in America's Public Schools

By Rollins, Joe | Law & Society Review, December 1, 2012 | Go to article overview

The Right to Be Out: Sexual Orientation and Gender Identity in America's Public Schools


Rollins, Joe, Law & Society Review


The Right to Be Out: Sexual Orientation and Gender Identity in America's Public Schools. By Stuart Biegel. Minneapolis: University of Minnesota Press, 2010. 300 pp. $19.95 paper.

Stuart Biegel's The Right to Be Out offers an expansive treatment of the legal and policy issues facing LGBT students and educators in America's public schools. Separated into two parts, the first surveys "the legal principles underlying the right to be out," and the second "sets forth the research-based principles that inform a proactive focus on school climate" (p. xix). Both parts begin with an introductory overview that is followed by three case studies. The author describes the project as "a series of building blocks, with each chapter expanding on what has come before." Although the book stands as an integrated whole, "each of the eight chapters is also designed to stand alone" (p. xix).

Chapter 1, "The Legal Foundations of the Right to Be Out," begins with the observation that the right to be out is a combination of First and Fourteenth Amendment principles. Here, the author quickly summarizes and synthesizes key public forum and right-to-an-education cases before turning brief attention to the student organization cases of the 1970s and 1980s. The story of Jamie Nabozny, a Wisconsin teenager who suffered relentless torment at the hands of his classmates while school officials ignored his pleas for help, is given slightly greater attention in order to spotlight waning judicial tolerance for such cavalier administrative apathy. Nabozny sued and ultimately won a sizable settlement in federal court, a success from which Biegel draws a hopeful jurisprudential conclusion: "all such treatment must end" (p. 12). Discussions of Lawrence v. Texas (2003) and a selection of Religion Clause cases are then marshaled in support of the author's argument that in educational settings there is constitutional support for a right to be out.

Chapters 2, 3, and 4, address, respectively: the emerging rights of LGBT students; challenges for LGBT educators; and curriculum, religion, morality, and values. Echoing Nabozny, what Chapter 2 shows most clearly is that while LGBT students were once seen as the disruptive problem in educational settings, judges have begun to understand that bullying and administrative disregard are the intolerable behaviors that must be changed. Chapter 3 shows that something similar is becoming true for LGBT educators. Whereas LGBT educators were once almost certainly subject to dismissal if they came out, courts have started to protect their right to be out on the job. …

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