VIA E-MAIL March 18, 2013 Interim Superintendent David McLaughlin Hesperia Unified School District 15576 Main Street

Hesperia, CA 92345 Re: Discrimination against LGBTQ and Gender Non-Conforming Students at Sultana HS

Dear Superintendent McLaughlin: We are writing on behalf of the Sultana High School Gay Straight Alliance (GSA) club to express our serious concern about school administrators‟ persistent censorship of the GSA‟s speech and activities, and systemic and pervasive discrimination against lesbian, gay, bisexual, transgender, queer/questioning (LGBTQ) and gender non-conforming (GNC) students. Far too often, we encounter situations where LGBTQ and GNC students face difficulties at school as a result of bullying and harassment by their peers. At Sultana High School, it sadly seems, the primary bullies are school officials and teachers—the very adults with a legal obligation and an ethical imperative to stop bullying and harassment and to ensure an equal and supportive educational experience for all. Officials at Sultana High School have repeatedly violated federal and state law by: (1) suppressing the GSA’s speech about the club and LGBTQ issues, censoring its posters and announcements, refusing to approve its educational events, and treating the GSA differently than other clubs; (2) discriminating against students who are or are perceived to be LGBTQ and GNC by making and allowing teachers to make harassing re marks such as calling students or things “gay,” saying “that‟s so gay” in the classroom, and in one instance making overt discriminatory comments about the Homecoming Queen‟s decision to wear a suit in lieu of a dress; failing to investigate, respond adequately to, and discouraging students from filing official complaints about anti-LGBTQ harassment and discrimination; retaliating against staff who advocate for the rights of the GSA and LGBTQ and GNC students; failing to implement, publicize, or train staff about clear policies and practices regarding discrimination and harassment; censoring discussion of LGBTQ issues at school; and treating same-sex couples differently by selectively enforcing PDA rules against them, excluding them from school traditions such as “favorite class couple,” and punishing LGBTQ students more harshly for misconduct than other students; and (3) imposing gender stereotypes and suppressing expressions of gender non-conformity by establishing and threatening to enforce gender stereotypical dress codes at school social events. In alerting you to these issues, we hope and expect that you will take immediate steps to fix them and to bring the school and district into compliance with the law. We are most immediately concerned about students‟ ability to wear gender non-conforming attire to prom on April 13th; the

ongoing censorship of the GSA‟s name, announcements, posters and events; and school staff making harassing and discriminatory remarks in school. Please tell us by March 25th whether you will provide us with written assurance that: (1) students will be permitted to wear gender non-conforming attire to prom; (2) the GSA will be allowed to use its full name, as well as the words “gay,” “lesbian,” “bisexual,” “transgender,” and “queer,” in its announcements and fliers, and that its announcements, events, posters, and activity requests will be evaluated and processed just like those of any other club; (3) school administrators will immediately instruct staff to refrain from making discriminatory and harassing comments about LGBTQ and GNC people in the school environment; and (4) whether you are willing to take action to address the overall hostile environment LGBTQ and GNC students encounter at the school—problems that require longer-term solutions such as addressing policies, procedures, and training, which we discuss in further detail below. We are eager to work cooperatively with you to improve the climate at the school for everyone and to collaborate on how to go about doing so. But if you cannot provide these assurances, please understand that we will pursue all legal avenues necessary to vindicate the rights of the GSA and its members. Censorship and Differential Treatment of Sultana’s Gay-Straight Alliance It is well established that schools may not block a GSA from conducting its club activities, treat it differently from other non-curricular clubs, suppress its speech, or otherwise discriminate against the club because school officials do not like the content or viewpoint of the club‟s speech. Such actions are clearly prohibited by the Equal Access Act,1 the First Amendment of the U.S. Constitution,2 the free speech protections in the California Constitution and California Education Code § 48907, and antidiscrimination protections in California Education Code § 220. As the U.S. Department of Education has made clear, Equal Access Act and First Amendment protections apply to student groups “that address issues relating to LGBTQ students and matters involving sexual orientation and gender identity, just as they apply to religious and other student groups.” 3 GSAs, LGBTQ students, and their allies, like all students, enjoy First Amendment protection and do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”4 California‟s free speech provisions are even more protective than federal law,5 and censoring, discriminating against, and denying equal access to a GSA is prohibited sexual orientation discrimination under California Education Code § 220.6 The “equal access” a school must afford a GSA is broad and includes access to all school resources other clubs enjoy. Thus, a school may not deny a GSA access to avenues of communication other student clubs use to promote club activities, such as the public address system, club fairs, bulletin boards, and school newspapers.7 And, under both the Equal Access Act and First Amendment, a school
20 U.S.C. § 4071(a) (“It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.”) 2 Good News Club v. Milford Central School District, 121 S. Ct. 2093, 2100-02 (2001). 3 http://www2.ed.gov/policy/elsec/guid/secletter/110607.html; see also http://www2.ed.gov/policy/elsec/guid/secletter/groupsguide.doc (legal guidelines). 4 Tinker v. Des Moines, 393 U.S. 503, 506 (1969). 5 Los Angeles Alliance for Survival v. City of Los Angeles, 22 Cal. 4th 352, 366-67 (2000). 6 See 5 Cal. Code Regs. §§ 4900(a), 4927. 7 Bd. of Educ. of the Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 237, 247 (1990); Prince v. Jacoby, 303 F.3d 1074, 1086 (9th Cir. 2002); Straights & Gays for Equality v. Osseo Area Schs., 471 F.3d 908, 912 (8th Cir. 2006); Boyd County High Sch. Gay Straight Alliance v. Bd. of Educ., 258 F. Supp. 2d 667, 683-84 (E.D. Ky. 2003).
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may not censor student club promotional materials, refuse to allow club events, or subject club requests to heightened scrutiny or more onerous approval processes simply because the school does not approve of or feel comfortable with the viewpoint or message the club seeks to express. 8 Nor may a school force a GSA to change or truncate its name, as the name of a club has important expressive character.9 Unfortunately, Sultana High School officials—particularly Principal Larry Bird and Vice Principal H.R. Lugo—have subjected the school‟s GSA to each of these unlawful actions. This must stop immediately. School officials have censored the GSA‟s promotional flyers and announcements in ways that other clubs are not censored and because of the viewpoint and message being conveyed. Indeed, the club‟s very name has typically been truncated from “Gay-Straight Alliance” to “GSA” when morning announcements are read over the intercom, with the words “gay,” “lesbian,” “bisexual,” “transgender,” and “queer” omitted entirely. One announcement submitted as: “Do you identify as straight, lesbian, bisexual, gay, or are you questioning everything? Come join Sultana ‟s Gay Straight Alliance on Wednesdays at lunch in room w-11. Join a group of students here on campus that support each other and want to make a difference for others” was instead broadcast as, “GSA meet ing in W-11.” The club‟s recently submitted announcements have, more often than not, simply not been broadcast at all. The school‟s attempt to minimize the student body‟s awareness of the existence of a group supportive of LGBTQ students is reinforced by the GSA‟s exclusion from the “School Clubs and Organizations” listed in Sultana‟s 2012-2013 Student Handbook & Planner. And, finally, school officials recently refused to approve for posting club flyers that merely advertised the group as a resource for LGBTQ youth and one flyer that provided definitions for each of the terms in the acronym. Principal Bird told club members that the flyers were rejected because the word “queer” was deemed offensive, and Vice Principal Lugo stated words to the effect of, “if we can‟t have a discussion in the classroom saying queer, gay, or lesbian, why should they put them on posters?” Not only have the GSA‟s efforts to publicize the club and to attract new members been stifled, but its club-related activities have also unfairly been restricted. While other clubs (such as the Future Homemakers of America, ROTC, Key Club, and Marching Band) regularly screen movies for their members, Principal Bird and Vice Principal Lugo have refused every GSA request this school year for permission to show educational and age-appropriate movies addressing political and social issues important to LGBTQ youth.10 School officials have prohibited the GSA from screening movies about the devastating effects of bullying, teen suicide and its impact on the family, the vicious harassment and discrimination faced by LGBTQ individuals in rural America, the use of scripture to justify discrimination against LGBTQ people, what it means to grow up gay in America, and the quest for love and acceptance.11 In one instance, Principal Bird refused the GSA‟s request to screen the Lifetime television movie “Prayers for Bobby” expressly on the basis of its “content,” claiming that the film‟s discussion of suicide was too “sensitive” and could have a negative em otional impact on students. No such emotional sensitivity, however, was invoked to prevent one Sultana teacher from screening “Schindler‟s List”—an R-rated film graphically depicting the horrors of the Holocaust —for her class.
Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S. 819, 829 (1995); Good News Club, 121 S. Ct. at 2100-02; Colin ex rel. Colin v. Orange Unified Sch. Dist., 83 F. Supp. 2d 1135, 1141, 1149 (C.D. Cal. 2000). 9 Colin, 83 F. Supp. 2d at 1142, 1147-49 (unlawful under First Amendment and Equal Access Act to require student Gay-Straight Alliance to change its name and noting that “when passing the EAA, Congress did not pass an Access for All Students Except Gay Students Act”). 10 The only film the GSA has been allowed to screen this year, “Hairspray,” is devoid of LGBTQ related content. 11 Among the films proposed and rejected for screening are “Prayers for Bobby,” “Out in Silence,” “For the Bible Tells Me So,” and “True Love.”
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In November, the GSA responded to Principal Bird‟s concerns by explaining in writing how other GSAs across the country had screened “Prayers for Bobby” without incident and that the club‟s purpose in screening the film was simply “to reinforce to [their] club members the fact that t hey are not alone. And that it does get better.” The GSA‟s impassioned plea was ignored. School officials have also repeatedly rejected proposed GSA events and campaigns designed to educate and provoke constructive discussions within the school community about homophobia and bullying. For example, the GSA recently requested ASB approval to post flyers produced by the Gay, Lesbian and Straight Education Network (GLSEN) and the Ad Council to explain why words and phrases commonly used by Sultana teachers and students as homophobic slurs—“that‟s so gay,” “gay,” “dyke,” and “faggot”—are hurtful and offensive. School administrators, after reportedly conferring with the District, refused approval for all but one of the flyers on the basis of their purportedly “offensive” content. Similarly, in the fall of 2012, the GSA sought approval for Ally Week events, a national event in which students collect pledge cards from students and staff indicating their commitment to ending bullying and harassment in school. After requiring GSA Advisor Julie Frost to attend three separate meetings with Principal Bird, Assistant Principal Lugo, and Assistant Principal Jennifer Murillo—when such events are typically approved as a matter of course by the ASB alone —the GSA never received an official response or approval for its event. Because of the event‟s importance to the GSA, members were left to act on their own initiative to solicit Ally pledges. The heightened scrutiny to which school officials have subjected the GSA ‟s activity requests (in contrast to those by other clubs), together with the shifting rationales proffered by the administration, strongly suggests decisions are made upon mere discomfort with or disapproval of the GSA ‟s message. With regard to the movie events in particular, GSA members were first told they simply had to submit a form to request approval to screen a film. Then they were told the content of their movies was inappropriate. When the students asked for guidance as to what sort of movies would be deemed “appropriate,” none was provided. Permission was next denied due to unspecified “copyright concerns.” When the club actually obtained a written release ameliorating any purported copyright concerns to screen “Out in Silence,” Principal Bird then r esponded that he had to consult the District, which he claimed had been considering prohibiting movie nights altogether. To our knowledge, no such prohibition has ever issued, and other clubs continue to screen films and are planning to do so in the coming weeks. The Sultana administration‟s systematic silencing of pro-LGBTQ speech and its disparate treatment of the GSA demonstrates hostility to the GSA ‟s speech based on its viewpoint and message. Such overt censorship has also impacted the GSA‟s membership and impaired its ability to communicate, operate, and function on par with other school clubs. It also serves to stifle any positive or productive discussion of LGBTQ issues at the school, thereby reinforcing a culture of homophobia and bullying. When coupled with the frequent and unabashed expression of anti-LGBTQ sentiment by administrators, teachers, and students (discussed further below), it is unsurprising that the environment at Sultana for LGBTQ students is hostile and unwelcome. Such actions blatantly violate the GSA‟s rights under state and federal law. That school officials might find the GSA‟s speech or proposed events “controversial” or have some vague fear of how other students will react to the speech do not justify censorship. 12 Indeed, as courts have observed, far from
Tinker, 393 U.S. at 508 (“undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”); Colin, 83 F. Supp. 2d at 1141 (“official suppression of student speech in high schools [cannot] be justified by the „mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.‟”) (citing Tinker); Boyd County,
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being a major disruption of the education of students, GSAs and their discussion of homophobia and acceptance of all students regardless of sexual orientation have proven to minimize disruption, by reducing bullying and harassment in schools.13 Discrimination Against LGBTQ and Gender Non-Conforming Students The law‟s protections extend not only to the GSA as an organization, but also to each student. California Education Code § 220, California Civil Code § 51 (the Unruh Civil Rights Act), the Equal Protection principles of the U.S. and California Constitutions, and in many circumstances Title IX, all prohibit school districts and school officials from discriminating against LGBTQ and GNC students. School officials must refrain from discriminating against or harassing students on the basis of sexual orientation, gender expression and gender non-conformity. Treating students differently, making harassing remarks, or creating a hostile educational environment for a student because of a student‟s sexual orientation or because a student fails to conform to gender stereotypes all constitute prohibited discrimination. School officials also have an affirmative obligation to protect students from discrimination and harassment by teachers, staff and other students: when an appropriate person (often a principal) knows or should know of such problems and ignores it, fails to investigate, fails to rectify, or applies only ineffective remedial measures, liability against the school will lie.14 Indeed, California law compels schools to take proactive steps to stop and prevent anti-LGBTQ bias and harassment, such as (1) requiring school personnel to intervene immediately when they witness incidents of discrimination, bullying, and harassment; and (2) adopting, adhering to, and publicizing clear policies that prohibit discrimination and harassment and processes to handle complaints. 15 These steps are not being taken at Sultana High School. Instead, school administrators subject students who are or perceived to be LGBTQ and gender non-conforming to discrimination by censoring discussion of LGBTQ issues at school, and stifle the speech and activities of the GSA. Administrators are unlawfully discriminating in other ways as well: school officials condone and fail to stop teachers from treating their LGBTQ students differently than straight students, making bigoted remarks to students regarding sexual orientation and gender non-conformity, and allowing students under their supervision to do the same. When students complain about such teacher conduct, officials more often than not fail to investigate or resolve the complaints, respond with ineffectual measures, or sometimes purposefully dissuade students from filing complaints. The events surrounding the election of a lesbian student as Homecoming Queen well illustrate the Sultana faculty‟s hostility to LGBTQ and GNC students. Indeed, Vice Principal Lugo discouraged
258 F. Supp. 2d at 688-91 (rejecting school district‟s argument that recognition of local Gay-Straight Alliance and its controversial viewpoints would cause disruption and upheaval at the school). 13 Colin, 83 F. Supp. 2d at 1146; Bullying and LGBTQ Youth, www.stopbullying.gov (federal government website discussing the importance of GSAs to creating a safe and supportive school environment for LGBTQ youth) Gay Lesbian Straight Education Network, The 2011 National Climate Survey (2012), at xvi, available at http://www.glsen.org/binary-data/GLSEN_ATTACHMENTS/file/000/002/2105-1.pdf. 14 See e.g., Gebser v. Lago Vista Indep. School District, 524 U.S. 274, 288-89 (1998); Davis v. Monroe Cty Bd of Ed., 526 U.S. 629, 650 (1999); Donovan v. Poway Unified School Dist., 167 Cal. App. 4th 567, 605 (Cal. App. 4th Dist. 2008); Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1137-38 (9th Cir. 2003); Nabozny v. Podlesny, 92 F.3d 446, 454 (7th Cir. 1996); see also US. Dept. of Ed., Off. for Civil Rights, Dear Colleague Letter, Oct. 26, 2010 at 7-8. 15 See, e.g., Cal. Ed. Code §§ 201, 234.1. Schools are also prohibited from providing instruction that promotes bias against or reflects adversely upon students because of their sexual orientation, gender identity or gender expression. Cal. Ed. Code §§ 51500-1; Cal. Ed. Code § 51933(b)(4). 5

one GSA member from casting her vote for this student in the first instance, referring to her nomination as nothing but a “joke.” Multiple faculty members, moreover, reportedly expressed to students their disapproval of the Homecoming Queen‟s decision to wear a suit instead of a dress to the homecoming dance. One teacher was heard to remark, “It‟s a shame you couldn‟t have had a Homecoming Queen who wore a dress,” while the band teacher stated to his entire class, “I understand that she is that way, but she should have worn a dress.” The administration‟s response when the student sought to file a formal complaint about the disparaging comments being made about her gender non-conforming clothing presents another cause for concern. Although the student and her father both contacted the school to take issue with the reported faculty comments about her attire, the administrators never investigated or addressed the student ‟s complaint. Instead, Assistant Principal Murillo intimated to the student that a formal complaint would require the school to reveal the student‟s sexual orientation to her father, purportedly due to unspecified “safety issues”—despite the student‟s protestation that she was not then “out” at home and the fact that no threat of physical violence to the student was at issue. This tacit intimidation-by-threatened-outing ultimately accelerated the student ‟s plan to come out to her father in order to prevent him from learning of her orientation from the Sultana administration. These are not the only instances of the flagrant disregard of state and federal law occurring at Sultana. Just last month, students in an economics class were subjected to harassing remarks in a discussion about Valentine‟s Day; when one student stated that he did not have a valentine, the teacher responded by saying it was “because you‟re gay and nobody wants to be with you.” “You‟re gay” is apparently one of this teacher‟s frequent retorts; unsurprisingly, students in his class feel free to make similarly homophobic comments with impunity. One GSA member in this teacher‟s class has lodged five verbal complaints with Principal Bird‟s secretary and four written complaints regarding his behavior and similar behavior by other teachers, all without response. Similarly, just last month, after another teacher instructed a student in his anatomy class to “take the gay headband off” and commented “that‟s so gay” in front of his students, GSA member Amber Stanford submitted a Uniform Complaint form from the GSA Network‟s website to Principal Bird in order to report the incident. Principal Bird proved far more interested in how Amber had obtained the form than the substance of the allegations. Finally, the former woodshop instructor is another faculty member who freely makes and condones homophobic remarks in class, such as “that‟s gay” and “you‟re gay.” Earlier this year, when Amber took issue with a classmate‟s homophobic remark, this teacher sent her—but not the student making the offending comments—to the principal‟s office. Although Amber complained to Principal Bird about the teacher‟s conduct, no action was taken. This same teacher also retaliated against Amber last April for observing the National Day of Silence, a day when students across the country symbolically express the silencing effect of bullying and harassment on LGBTQ students. Participating students remain silent throughout the day, wear duct tape over their mouths, and, upon inquiry, distribute cards explaining their protest. The teacher, who had been given advance notice of the National Day of Silence activities and their purpose, confronted Amber at the start of class and asked if she intended to continue her protest. When she refused to remove the duct tape over her mouth, the teacher required her to sit in the corner for the remainder of the period. On last year ‟s Day of Silence, moreover, a chemistry teacher at the school reportedly told his class that “the gays are the real bullies.” Despite these and other troubling incidents of which they are well aware, school administrators have not, to our knowledge, adequately responded. Staff known to make discriminatory remarks have not been reprimanded, and school staff have not been trained about their legal obligations towards LGBTQ and GNC students. Nor to our knowledge has the school clearly articulated and made staff or
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students aware of policies regarding discrimination, bullying, and harassment, or the process for making and resolving complaints. To the extent any policies prohibiting and processes for handling complaints of discrimination and harassment exist, moreover, the persistent pattern of inaction with regard to GSA members‟ complaints expose their inadequacy or the administration ‟s deliberate indifference to their enforcement. By treating GSA members‟ complaints about discrimination and harassment differently than other types of complaints and not following Uniform Complaint Procedures —namely, by largely ignoring them and failing promptly to investigate and/or resolve them —the school administration is engaged in discriminatory conduct. That GSA members often do not bother to report much of the discrimination and harassment they face is thus unsurprising: they justifiably lack any confidence that their complaints will be addressed. Indeed, school administrators have actively targeted a lesbian teacher supportive of the GSA and Sultana‟s LGBTQ students. Just weeks after Ms. Frost agreed to become one of the GSA‟s faculty advisors, the administration began subjecting her to discriminatory and harassing interrogations. Eventually, Sultana‟s administration accused Ms. Frost of “teaching homosexuality” and criticized her for using a Newsweek article about the military‟s “Don‟t Ask, Don‟t Tell” policy in her lesson plan, despite the fact that the lesson plan was from an approved source and was used by other Sultana teachers. When Ms. Frost assisted GSA students in complaining about other teachers‟ homophobic slurs and related matters, as well as the administration‟s refusal to approve the GSA‟s events, she was interrogated and scrutinized further. Just days after Principal Bird learned that Ms. Frost helped Amber Stanford obtain a Uniform Complaint Form so that Amber could report her anatomy teacher‟s homophobic “gay headband” comment, Principal Bird told Ms. Frost that she was a “bad fit” and that Sultana would not be renewing her teaching contract. In doing so, not only has the administration taken away one of the GSA‟s most supportive and caring faculty members, but it has made clear that it will discriminate and retaliate against an openly lesbian teacher who attempts to change the hostile school environment. School administrators also engage in discriminatory conduct by their own remarks. Earlier this year, one GSA member overheard Vice Principal Lugo say “that‟s so gay” in a school hallway. GSA President Kyle Bodda likewise recently heard Vice Principal Lugo refer to his own son, who had lain down on nearby gym mats used by the cheerleading team, as “a vagina”—presumably to show disdain for behavior he considered effeminate. School administrators are treating LGBTQ students differently than other students by more stringently enforcing the school‟s PDA policy against same-sex couples in the school. Although we understand that straight couples regularly engage in far more graphic PDA than the school ‟s gay and lesbian couples, gay and lesbian couples are targeted and more closely scrutinized. Indeed, Principal Bird stopped two GSA members, Kyle and Tristian Ordaz, while they were walking outside merely holding hands. Principal Bird informed the two that the school was enforcing the PDA policy and ordered them to separate, stating, “but because you‟re a special case, I don‟t want you to feel singled out.” Principal Bird‟s “assurance” accomplished only what it purported to disclaim : the couple understandably felt singled out on the basis of their sexual orientation. School officials are also permitting practices that exclude same-sex couples from equal participation in school activities and traditions. In particular, the school excludes gay and lesbian couples from the “favorite couple” section of the yearbook. Students asked to choose their “favorite couple” are given space to select only one boy and one girl. This process necessarily forecloses the
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selection of a same-sex couple as the favorite and thereby conveys to students the message that such couples are not worthy of recognition. There is also some indication that LGBTQ students may be punished more harshly for misconduct than other students. For example, last year Kyle and another student tabled for Sultana‟s Club Fair, selling lollipops with inspirational messages to fundraise for the club. The other student wrote and distributed to his friends a few lollipops with words like “slut” written on them. Even though Kyle played no role in the creation or distribution of these lollipops, he was also punished. Both students were suspended for two days and Kyle was suspended from Color Guard for one month. By contrast, students who have used discriminatory slurs against GSA Advisor Frost (including saying, “fuck you, dyke bitch”) have been suspended for only a period or for the day. Finally, school administrators appear to be as uninterested in investigating and resolving complaints about student-on-student discrimination and harassment as they are with regard to complaints against Sultana faculty. Current GSA members report a pattern of complaints about peer harassment going unanswered or, when addressed, not solved. Far more often, students told us that they do not bother to file complaints because they do not believe the administration wants to deal with them and have no faith that anything will be done. For example, when GSA President Kyle chose not to file a complaint regarding a harassing comment made by a football player, Principal Bird told Kyle that it was “good that you hadn‟t filed a complaint and didn‟t distract him.” By engaging directly in discrimination, failing to step in to stop teachers from making discriminatory and harassing remarks, and failing/refusing to investigate or effectively resolve discrimination, harassment, and bullying complaints, Sultana High School officials and the District are not fulfilling their legal obligations to LGBTQ and gender non-conforming students under California Education Code § 220 and the Equal Protection clauses of the federal and state constitutions. Gender Stereotyping in School Dress Requirements Students have a protected First Amendment right to express themselves in a gender nonconforming manner, including by wearing gender non-conforming clothing. Many courts have recognized that a person‟s choice of clothing can be “endowed with sufficient levels of intentional expression to elicit the First Amendment.”16 First Amendment protections apply at extra-curricular school functions, including prom.17 In a case brought by the ACLU, a Mississippi court ruled that a female student‟s desire to wear a tuxedo to prom rather than comply with the girl ‟s dress code conveyed a message about gender roles and conformity protected by the First Amendment, because the student had the “intent of communicating to the school community her social and political views that women should not be constrained to wear clothing that has traditionally been deemed „female‟ attire.”18 Forcing students to dress in gender stereotypical ways or taking adverse action against a student for dressing in gender non-conforming ways also constitutes sex, gender, and gender expression discrimination prohibited by California Education Code § 220, California Civil Code § 51, Title IX, and

Canady v. Bossier Parish Sch. Bd., 240 F.3d 437, 440 (5th Cir. 2011). See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000); Truth v. Kent Sch. Dist., 542 F.3d 634 (9th Cir. 2011), overruled on other grounds, L.A. Cnty. V. Humphries, --- U.S. ----, 131 S. Ct. 447, 450-51 (2010); McMillen v. Itawamba County Sch. Dist., 702 F. Supp. 2d 699 (E.D. Miss. 2010); Fricke v. Lynch, 491 F. Supp. 381, 385 (D.R.I. 1980). 18 McMillen, 702 F. Supp. 2d at 704.
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the equal protection clauses of the federal and state constitutions. Sex stereotyping is prohibited sex discrimination, including in the school environment.19 Sultana High School‟s 2012-2013 Student Handbook establishes gendered dress code requirements for formal events, mandating that girls must wear dresses and boys must wear either a collared shirt with a tie (for semi-formal events) or a tuxedo (for formal events). The contract that students must sign to attend prom and grad night allows girls to wear dresses or slacks, but still requires boys to wear slacks, a collared shirt, and dress shoes, thus prohibiting any boy from wearing a dress. Although the contract is more permissive for girls than the Handbook, at the “senior meeting” in January, Vice Principal Lugo informed students that girls were to wear dresses and boys were to wear slacks and button up shirts to prom or else they would not be allowed on the bus for the event. Similarly gendered dress requirements are mandated for yearbook photographs. Girls are required to wear a shawl/drape and boys are required to wear tuxes for their photographs. When one GSA member asked if she could wear a tux for her picture, Vice Principal Lugo told her “that wouldn‟t be appropriate.” A number of female GSA members wish to wear tuxedos to prom. A male GSA member, Levi Smithson-Johnston, would like to wear a tuxedo and heels. They wish to dress in this manner—which some would consider gender non-conforming—both because they are most comfortable expressing themselves by doing so and to make a political statement to the school community about who they are, and that men and women should not be constrained to fit rigid, traditional norms and each person should be able to express who they are without fear of ridicule or punishment for failing to conform to gender stereotypes. This is precisely the sort of expression courts have found to be constitutionally protected and which cannot be restricted unless the school can reasonably forecast that the expression will “materially and substantially disrupt the work and discipline of the school.” 20 There is nothing to suggest any legitimate or serious risk of disruption exists if the students are permitted to wear tuxedos or heels at prom. Indeed, applying this standard, and noting the fear of controversy or negative reactions from other students, the McMillen court rejected the prohibition on a female student wearing a tuxedo to prom.21 The District and School Must Take Immediate Steps to Cease Unlawful Conduct and Systemically Improve School Climate for LGBTQ and GNC Students Hesperia Unified School District and Sultana High School must take immediate steps to address and prevent future censorship of the GSA and discrimination against the GSA and its LGBTQ students. Most immediately, the school and the District must:

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Provide assurances that students who plan to wear gender non-conforming clothing to prom will be allowed on the bus and will not be punished for wearing tuxedos or high heels. Cease unjustified censorship and disparate treatment of the GSA. This includes allowing the GSA to spell out its name and to use the words gay, lesbian, bisexual, transgender and queer in announcements, posters and flyers; to cease censoring the GSA‟s requested announcements, events,
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See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989); Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011); Pratt v. Indian River Cent. Sch. Dist., 803 F. Supp. 2d 135 (N.D.N.Y 2011). 20 Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 513 (1969). 21 McMillen, 702 F. Supp. 2d at 704-05. 9

and activity requests based on the message or viewpoint they convey; to allow the GSA to post the flyers they have been prevented from posting; and to subject the GSA‟s activity requests to the same evaluation and approval processes as those of any other club; and to allow the GSA to have events and education campaigns about LGBTQ issues, including the campaign to educate the school community about discriminatory terminology and screening of movies such as “Prayers for Bobby.”

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Instruct staff to cease making discriminatory and harassing comments about LGBTQ and GNC people in the school environment. Provide assurances that the school and the district are willing to work to improve the overall hostile environment LGBTQ and GNC students encounter at the school. We provide examples below of concrete steps the school and district must take toward this end, many of which, we recognize, require time to implement. But we need to know promptly whether the school and the district are willing to work collaboratively to implement solutions.

Please let us know by March 25th whether you can make written assurances on these four issues. There are a number of steps the school and district must take, as a longer-term matter, to systemically improve the school climate.

End discrimination and harassment of LGBTQ and GNC students by systemically improving school climate. The school and the district must take prompt and effective steps to cease discriminatory and harassing conduct by school staff. The school and district must establish, follow, and educate teachers and students about anti-discrimination, harassment, and bullying policies and their responsibilities and obligations thereunder. The school and district must also establish, follow, publicize, and educate teachers and students about clear procedures for making and resolution of complaints about bullying, harassment and discrimination. These policies must lay out timelines, steps to be taken in investigations, and other critical metrics informing students of their rights in filing such complaints in accordance with the Uniform Complaint Procedures laid out in the California Code of Regulations. Students must be protected from—and informed that they are protected from—retaliation for filing complaints and informed that complaints may be filed anonymously. Uniform Complaint Forms must be given to each complainant (unless the complainant states affirmatively that he or she wishes to resolve the situation informally) and each must be given a copy of the stamped and completed form. These complaints must be processed by the superintendent or his/her designee, and written reports detailing the investigation process, findings of fact, conclusions of law and actions taken must be provided to each complainant as required by the regulations. Records must be thoroughly maintained of every complaint lodged and its resolution, whether resolved formally or informally, and stored by impartial District personnel. The school and the district must take active steps to follow, enforce, and monitor compliance with the policies and procedures. To combat anti-LGBTQ harassment, bias and discrimination, the school and district must take holistic measures to change the culture and climate of Sultana High School to make it a welcoming place for all students. The school and district must establish and implement a comprehensive antibullying and acceptance curriculum for both students and staff with specific components aimed at remedying the pervasive homophobic climate at Sultana High School. Without professional development focused on developing compassion and acceptance for all students, as well as intervention skills and an opportunity to think deeply about these issues, it is extremely unlikely that school staff will be able to respond effectively to harassment and cease their own discriminatory
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conduct. And without student education on the district‟s anti-harassment and anti-discrimination policies, as well as the reasoning behind the policies, students are unlikely to appreciate the damaging effects of harassment or to understand how best to ask for help when they are harassed. We therefore urge the district to incorporate a new harassment-prevention program to systemically redress the hostile and discriminatory environment in which anti-LGBTQ harassment has persisted and to provide a safe campus for all of its students.

Change policies and practices that reinforce gender stereotypes . This includes ensuring that school and district dress codes and yearbook practices are non-discriminatory and do not force conformity to gender stereotypes. Ensure that the GSA is treated the same as other extracurricular clubs in the future . This includes establishing fair and uniform policies, practices, and criteria for oversight that are impartially and universally applied, consistent with the state and federal law, for extracurricular club operation, flyers, posters, events, and movie screenings. ******

We are eager to work with you to address these issues promptly, to bring the school and district‟s actions into compliance with the law, and to make Sultana High School awelcoming and safe place for all of its students. You may reach us by contacting Ellen Papadakis at (415) 984-8262, or at epapadakis@nixonpeabody.com. We look forward to hearing from you. Very truly yours, NIXON PEABODY LLP ACLU OF SOUTHERN CALIFORNIA Brendan Hamme, Student Rights Fellow Melissa Goodman, Senior Staff Attorney* *Admitted in NY, but not CA

Seth Levy Ellen M. Papadakis Cameron Cloar Danielle Kleinman

ACLU FOUNDATION Elizabeth O. Gill

cc:

Principal Larry Bird Vice Principal H.R. Lugo

14372561.

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