Academic journal article Texas Journal on Civil Liberties & Civil Rights

The Legal "Rights" of LGBT Educators in Public and Private Schools

Academic journal article Texas Journal on Civil Liberties & Civil Rights

The Legal "Rights" of LGBT Educators in Public and Private Schools

Article excerpt

"[Y]ou can't have equality if you can get married on Saturday and fired on Monday."1

Introduction.........................29

Overview and Context...................30

Context of LGBT Employment Rights.......................31

LGBT Educators Dismissed Based on Sexual Orientation......36

Legal & Policy Avenues.........39

Legal Barriers...............43

Conclusion..............53

Introduction

While educators can no longer be fired simply because of their gender, race, religion, or disability, it is not entirely settled whether educators can be dismissed because of their sexual orientation. As President Obama noted in 2014, "[I]n too many states and in too many workplaces, simply being gay, lesbian, bisexual, or transgender can still be a fireable

offense."2 Even after the Supreme Court held it unconstitutional for states to deny same-sex couples the right to marry in Obergefell v. Hodges,3 workplace discrimination on the basis of sexual orientation still occurs.4

After Obergefell, lesbian, gay, bisexual, and transgender (LGBT)5 educators who marry their same-sex partners may mistakenly believe that, because they have the constitutional right to marry, they are now free from discrimination based on their sexual orientation in public and private school employment. This article examines the legal issues involved when LGBT educators are dismissed from school employment. It first gives an overview and provides context regarding the current landscape of LGBT rights. It then explores some possible legal and policy avenues that might be available as recourse for those who experience this form of discrimination. It concludes by discussing the different legal barriers that LGBT educators will likely confront, especially in private schools, if they allege that school officials engaged in discriminatory practices when dismissing them.

OVERVIEW AND CONTEXT

Within educational-policy and leadership research, there is extensive focus on LGBT educators' identities6 and school politics around sexual orientation.7 Vast literature focuses on LGBT employment discrimination issues/ but relatively little specifically addresses LGBT edu cators' legal rights in public4 or private10 schools. A discussion of these legal rights is especially timely in light of the Supreme Court's Obergefell decision on the equality of rights to marry and because media reports show that LGBT educators are still being fired because of their sexual orientation-oftentimes after speaking publicly of their relationships." In addition, the Department of Justice, under the Trump Administration, recently posited that the Civil Rights Act of 1964 provides employees no protection from discriminatory firing on the basis of sexual orientation.12

CONTEXT OF LGBT EMPLOYMENT RIGHTS

Within the last sixty years, the rights of LGBT employees have continued to evolve. From the 1950s through the 1970s, some states proposed or enacted legislation that permitted the firing of openly gay teachers. In Florida, a group of legislators known as the "Johns Committee" pushed through legislation in 1956 that permitted the investigation of alleged communism and homosexuality.13 This committee investigat- ed a large number of "subversive" activities led by civil rights groups, scholars, and alleged communist organizations; the committee tried to eliminate gay and lesbian teachers from public education and state government.14 Likewise in 1978, California voters proposed a state ballot initiative called the "Briggs Initiative," which would have forbidden openly LGBT teachers from working in public schools.15 The ballot initiative never passed, but 41.6% of California voters supported the measure.16 Some federal legislators or candidates have expressed ongoing interest in these kinds of measures; for example, then-Senator Jim DeMint said in 2010 that gays should not be teachers in public schools,17 and 2017 Senate candidate Roy Moore said in 2005 that "[h]omosexual conduct should be illegal. …

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