What Is a Nondiscrimination
Law?
First, let's talk about what it's not.
It's not a magic wand. It won't drain a
prejudiced mind of its prejudice. It won't
automatically make an irresponsible person
responsible, an ignorant person enlightened, or a
violent person gentle. Advocacy, education, and
rehabilitation will all still be necessary.
It's also not an endpoint. It doesn't represent
the end of a process of growing as a society-it's
a mile-marker in the early days of our journey.
Finally, a law isn't instant. It takes time to
grow. Both within the judicial system and
throughout society, people will learn about it and
understand its meaning gradually, over months and
years as we do our work to educate them. Laws are
fleshed out and grow by being tested and used.
What develops is called case law, and it helps
lawyers, judges, and the rest of society
understand what a particular law means.
So what is a nondiscrimination law? It seems
obvious, doesn't it? It's a rule that says you
can't discriminate in a particular context against
a person because that person has a particular
trait or characteristic, and it typically applies
some form of penalty for doing so.
But every law is also something greater than
just a rule: it's a symbol and an opportunity. In
many ways, its greatest power and potential
derives, not from the legal process of accessing
it, but from the social processes of education and
discussion which it can start. A law symbolizes
and clarifies our society's values, and it creates
innumerable opportunities for us to educate
individuals and groups about those values and how
to make them part of our everyday lives.
What is
discrimination?
Good question. 200 years ago you would have
gotten a very different answer from the one most
of us agree on today. Thirty years ago, you would
have a different answer, too. Our society's
understanding of what discrimination is has grown
continually as our understanding of equality has
evolved. When the Constitution was ratified in
1788, the concept of equality only covered white
men. When sex discrimination first came to be
outlawed in employment in 1964 and in education in
1972, it didn't include the idea that sexual
harassment constituted discrimination. And today,
we're really standing at the beginning of a new
era for LGBT students. What will be categorized as
discrimination that we don't even think of as
discrimination now? How deeply will the law change
schools' cultures and, ultimately, how individuals
come to view themselves and each other?
These questions will take time to answer, and
they'll be answered in response to real people who
encounter real problems that will be sorted out
using the law as a guide.
Here are some examples of discrimination that
are pretty clear:
- A same-sex couple isn't allowed to attend
the school prom.
- Bias incidents committed on the basis of a
person's sexual orientation or gender identity
are ignored by school administrators.
- A hostile climate of verbal harassment and
intimidation is allowed to flourish in a
school.
- Same-sex couples who display affection in
public are treated differently than opposite
couples who display their affection in public.
- A student is denied full access to part of
the school facilities as a result of the
school's unwillingness or inability to make
those facilities safe.
- A Gay-Straight Alliance or other club to
support LGBT youth isn't allowed to form on
campus.
But there are a lot of other areas in which
LGBT students are treated differently, and such
treatment may one day be understood as
discriminatory, if not through this law, then
perhaps through others that build on it. Think
about sex education, which essentially pretends
that LGBT people don't exist. AB 537 doesn't cover
that. Or consider your school library, which may
have very little information about LGBT people or
issues. Or think about how rituals like electing a
Prom Queen and a Prom King enshrine
heterosexuality and enforce gender stereotypes.
All of these are inequities which our society as a
whole doesn't yet understand to be discriminatory.
If we use it, AB 537 may help us arrive
ultimately at a much broader and deeper
understanding of equality for LGBT students.
What is AB 537?
AB 537, the California Student Safety and
Violence Prevention Act of 2000, changed
California's Education Code by adding sexual
orientation and gender to the Code's umbrella
nondiscrimination provisions.
This will make it illegal for schools to
discriminate against LGBT students or to allow the
school environment to get so hostile for LGBT
students that they are, in effect, denied equal
access to an education.
What can AB 537 do for
you?
Every public school in California is now
responsible for protecting LGBT students from
harassment and discrimination. If your school
fails to live up that responsibility, you have a
place to turn: the California Department of
Education.
Does that mean if you get harassed or attacked
you should call the California Department of
Education? No. The first thing you need to do is
to make sure that your school knows about the
problem. Telling a teacher doesn't count as
telling your school about a problem. Neither does
telling a counselor. You have to report the
problem to someone who is legally required to act
on it: a principal or vice principal.
In other words, for AB 537 to come into play,
you have to report the problem.
How do you file a
complaint and what will happen when you do?
So when do you call in the civil rights cops
from the Department of Education? Well...the truth
is, it's not the speediest process in the entire
world.
When your school fails to respond to your
complaint, the Department of Education requires
you to file a complaint with your school
district's school board. Although the complaint
process is currently being revised, that will in
all likelihood continue to be the route for
reaching the State Department of Education.
Once a student has filed a complaint with the
school board, the school board has 60 days to
investigate and respond to the complaint. If its
response is inadequate, the student has 14 days to
appeal to the Department of Education.
The Department then has 60 days to investigate
and respond to the complaint, after which it will
issue a decision about whether the school has
lived up to its responsibilities and whether it
needs to do anything else in order to do so.
So, it's not exactly like a SWAT team arrives
to stop the discrimination. It's a lengthy
process, at least from the perspective of someone
experiencing harassment.
What happens if a school still refuses to live
up to its responsibilities? Well, the Department
of Education does control a large chunk of funding
for local schools, and it is authorized to
withhold that funding if schools openly disobey
the state's nondiscrimination laws, so most
schools will probably deal with it once the
Department tells them to. Those who don't will be
playing a very high stakes game of chicken.
What opportunities
does this law create?
The most important thing about this law is not
how long it takes, or what kind of penalties it
imposes, or whether students can keep pursuing
other solutions in court.
What's most important about this law is that it
exists. It's something you can point to, and it's
something you can educate people about.
It helps convert every problem into a possible
solution. It creates opportunities for discussion.
And it gives students the authority to demand what
they already know is right: an equal shot at a
safe education for every student, regardless of
sexual orientation or gender identity.
Think of the law as a tool. Now think of the
thousands and thousands of students who have that
tool.
A house built with one hammer takes a long
time. A house with a thousand hammers and hands
can take shape before your eyes.
