House committee removes LGBT protections from charter schools bill
By Erin Beck, WV Gazette
The House Education Committee removed language that included specific protections for lesbian, gay, bisexual and transgender students and employees from a bill to allow charter schools in West Virginia this week.
LGBT rights advocates say the move was a blatant effort to avoid giving deserved protections to a historically discriminated against group and ensure equal opportunity for charter school enrollment for students.
The bill (SB14), which passed the Senate Monday, said charter schools couldn’t discriminate against any person based on certain characteristics, such as race, gender or sexual orientation.
The amendment by Delegate Rick Moye, D-Raleigh, and Delegate William Romine, R-Tyler, removes that language and adds a provision that states that “a public charter school may not discriminate against any person on any basis that would be unlawful if done by a noncharter public school.” The House Education Committee passed the bill with the amendment on Wednesday.
Moye said the amendment was meant to make it illegal to discriminate against any student for any reason, rather than singling out certain groups. “When you start naming classes, then you are going to omit classes, but when you say anyone, you include anyone,” he said. Romine didn’t return a phone call.
Howard Seufer Jr., a Charleston attorney who has practiced school law for more than 30 years, said that federal law applies to all schools that accept federal funds -- including charters. He noted a section of federal law in Title IX prohibits sexual harassment against gay or lesbian students “that is sufficiently serious to limit or deny a student’s ability to participate in or benefit from the school’s program.” “I’m sure if a school administrator used somebody’s actual or perceived sexual preference or orientation to exclude someone from enrolling a school, it’d be a pretty clear case as long as you could prove it,” Seufer said.
As for state education policy, it does not mention sexual orientation or gender identity alongside race, gender and other characteristics in a nondiscrimination clause listed under “The Right to a Thorough and Efficient Education.”
Another state policy guarantees “equal opportunity to all students and employees or potential employees” and lists race and religion among several protected classes -- but neither sexual orientation nor gender identity are included.
School policy does mention protections for LGBT students in one section, the harassment and bullying section
But Del. Stephen Skinner, D-Jefferson, said that even though the amendment would make noncharter school education law apply to charter schools, existing state policies and laws could be irrelevant in this case because charter schools have different enrollment processes. He said that the amendment’s intent was clear. “The point of this is that the nondiscrimination provision was taken out because it contained sexual orientation, period,” he said. “How it interacts with the rest of state law in some ways doesn’t matter because one of the things we do know about state law is there are no special protections for admission into schools based on sexual orientation.
”Skinner said he had previously been told by charter schools proponents that an important component of the bill was the inclusion of specific protections for certain categories, such as those with disabilities or LGBT students.
The charter schools bill made sure the kids that were most at risk would be protected,” he said. “That was then.”
He plans to introduce an amendment when the bill comes up for a vote in the House of Delegates to return the nondiscrimination clause to the bill.
“We have to provide an education to all kids,” he said. “We shouldn’t be able to pick and choose.”
Skinner said that while bullying against LGBT students is considered in state policy, there are plenty of other ways that charter schools could discriminate if the amendment becomes part of charter schools law, including during enrollment into charter schools and discrimination against school staff.
Asked about school personnel, Seufer said that decisions by the precursor to the Public Employees Grievance Board established that discrimination based upon sexual preference or orientation is illegal. But under the current version of the bill, charters would be allowed to opt out of the state grievance process.
Andrew Schneider, executive director of the LGBT rights group Fairness West Virginia, said the committee’s move to alter the nondiscrimination clause was a thinly-veiled attempt to give schools license to discriminate. “Basically this would allow for principals to ban and expel lesbian, gay, bisexual and transgender students,” he said. “The fact is that our schools should protect all kids, not just some of them.”
Schneider noted that North Carolina’s legislature passed a similar amendment to its charter schools bill.
“Whoever was responsible for the legislation might have gotten the idea from North Carolina,” he said. “It’s not unlike what happened with HB2881 where they seemed to have gotten the idea from Arkansas and Tennessee.”
Schneider was referring to a recent bill that drew impassioned protest from the LGBT community and allies last week. The bill, which would have stripped away the ability of local governments to enact their own nondiscrimination ordinances protecting LGBT citizens, was postponed indefinitely by the House Government Organization committee. Schneider said the legislators’ attempts to remove protections aren’t going without notice by LGBT young people.
“It makes them feel more vulnerable because the Legislature is sending a clear message that it’s OK to discriminate against them in these charter schools,” he said.
Sen. Dave Sypolt, R-Preston, the lead sponsor of the bill, said he believes the original nondiscrimination language was included because it was part of a model bill provided to delegates.
“That wasn’t my language,” he said. Neither Moye nor House Education Chairwoman Amanda Pasdon, R-Monongalia, knew how many voted for the amendment. Pasdon said she did not vote for it. “I didn’t have any problem with the language as it was currently written,” she said.
Pasdon said she worried that the removal of the nondiscrimination clause was “hijacking” the charter schools bill, but she doesn’t think Moye and Romine intended to target LGBT students.
“Delegate Moye defined it as not wanting to define any groups, and that’s really all I can tell you,” she said. “With this amendment and many others last night, I was given the amendment during the middle of the committee meeting and there wasn’t time for much discussion.”