Gay marriage’s effects on students, schools aired in court arguments

Mar 31, 2013 by

By Beth Hawkins –

I don’t know whether you noticed, but Learning Curve has been on vacation for a week. Would you settle for a roundup of news items concerning ripples being felt in schools from this week’s same-sex marriage arguments at the U.S. Supreme Court?

It would allow Your Humble Blogger time to dust off her to-do list, figure out what did and didn’t happen over at the Capitol during her absence and get over a minor tantrum caused by spring’s failure to arrive while she was gone.

Same-sex marriage is rarely depicted as an education-related issue, so the proceedings may surprise some. Yet the impact any decision would have on schools and students very clearly has been uppermost on the justices’ minds.

According to Education Week, whose excellent school law blog has kept close tabs on the case, Justice Anthony M. Kennedy, a likely swing vote, pushed proponents of Proposition 8, the 2008 ballot initiative that overturned gay marriage in California. “There are some 40,000 children in California … [who] live with same-sex parents, and they want their parents to have full recognition and full status,” Kennedy said. “The voice of those children is important in this case, don’t you think?”

Not treated the same way

U.S. Solicitor General Donald B. Verrilli Jr., arguing against Prop. 8, noted that those students are not currently treated the same way at school: “Their parents cannot marry and that has effects on them in the here and now. A stabilizing effect is not there. When they go to school … they don’t have parents like everybody else’s parents.”

Theodore Olson, one of the attorneys representing the California same-sex couples who brought the action, mentioned schools in a slightly different context. Under questioning from Justice Antonin Scalia about exactly when it became unconstitutional “to exclude homosexual couples from marriage,” Olson noted that the court “has never required such a showing before when individual rights were expanded,” Education Week reported, “and he noted that the court’s decision that separate schools for black and white children were unconstitutional had reversed an earlier decision on racial segregation.”

One of the loudest arguments raised by Prop. 8 backers before lower courts — that same-sex marriage must be banned to protect children from being taught about it at school — was not brought up by gay-marriage opponents. It was, however, mentioned in the Obama administration’s brief, which Verrilli submitted earlier this month.

Again, from Education Week: “Any such ‘educational’ interest cannot sustain Proposition 8,” the solicitor general says in his brief. “Insofar as the interest in insulating children from any lesson that same-sex marriage is ‘okay’ is founded on a moral judgment, that interest is inadequate under this court’s precedents.”

Must comply with anti-discrimination laws

Verrilli also noted that California schools, like many throughout the country, are under no mandate to “teach gay marriage,” but must comply with state and federal anti-discrimination laws.

If that sounds simple, let’s pause for a moment to consider how often school administrators, faced with a naturally occurring “teachable moment” on the subject, freeze like proverbial headlight-hunted deer.

Indeed, the very first thing educators who either want to talk to students about the headlines the cases are generating or find themselves fielding questions will ask themselves is likely to be, “Is this going to land me in hot water with my principal? School board member? The teacher down the hall?”

Anoka-Hennepin School District’s watershed legal settlement of a federal bullying lawsuit and U.S. Justice Department investigation notwithstanding, lots of schools throughout the country still observe tacit or formal “don’t say gay” policies. The same idea landed the Minnesota district in hot water when students affected by a wave of suicides accused it of forcing teachers to look the other way.

Indeed, a bill currently before the Tennessee General Assembly would not only cement such a policy in that state, it would compel educators to “out” homosexual students to their parents. Such a measure failed last year in Missouri.

Debate at the Minnesota Legislature

Finally, same-sex marriage, schools and bullying are at the center of debate at Minnesota’s Legislature, where a detailed, comprehensive school climate bill is moving forward despite vociferous opposition from many of the same groups and individuals that are working to defeat the legalization of gay marriage here.

The Minnesota Catholic Conference has asked state lawmakers to exempt parochial schools from the measure, arguing that they do not receive public funds. (This argument merits a more thorough dissection in this space soon.)

The conference has asked its supporters to contact their legislators and urge a “no” vote. Among other things, they argue that the law would force “students who dissent from certain state-approved cultural/political attitudes to potentially be referred to ‘counseling’ by school authorities who deem that they are failing to sufficiently ‘value diversity.’

“This is not ‘anti-bullying,’ ” says a suggested e-mail to lawmakers available on the group’s website, “this is bullying.”

via Gay marriage’s effects on students, schools aired in court arguments | MinnPost.

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