NEW YORK'S HARVEY MILK SCHOOL: A VIABLE ALTERNATIVE

The teenage years are difficult, no doubt universally. However, lesbian, gay, bisexual and transgender teenagers often find the teenage period of their life to be not only difficult, but also overwhelmingly dangerous. In light of the No Child Left Behind Act of 2001,1 communities are seeking to find alternative means to ensure that all children are provided with adequate public education. The New York Department of Education has recently partnered with a unique program through the Hetrick-Martin Institute. The public school system has provided funds to expand a high school that will primarily serve lesbian, gay, bisexual and transgender students who are at high risk for dropping out of the education system. Much debate has already begun over the public funding of this program, and a lawsuit has been filed as well.

This note will examine the risks faced by lesbian, gay, bisexual and transgender youth and why these students are in a unique position within our school systems. The mission of the Harvey Milk High School and its admission criteria will be examined, as well as the lawsuit that suggests this partnership is unconstitutional and the recent federal legislation that places that assertion in doubt. Finally, this note will suggest that the focus of both the courts and the school systems should be on assuring that all students are provided access to educational opportunities without risk of emotional and bodily harm.

I. THE NEED FOR SAFETY: STUDENTS AT RISK

Violence against lesbian, gay, bisexual and transgender (LGBT) youth has reached an unacceptable level. The Sexuality Information and Education Council of the United States (SIECUS) conducted a study amongst LGBT youth in 1999 reporting that 41.7% did not feel safe in their school, and 69 percent had experienced some sort of harassment or violence.2 Possibly more disturbing was that more than one third of the students surveyed had heard homophobic remarks from faculty or staff while at school.3

This verbal and physical harassment places LGBT youth at greater risk, not only physically, but mentally according to the National Mental Health Association (NMA) website.4 The constant barrage of slurs and harassment directly impacts the mental distress. This environment contributes to the threefold higher suicide rate amongst LGBT youth.5 Additionally, these students suffer a dropout rate of 28 percent which is over three times the national average.6

These statistics are alarming and a cause for concern for parents and educators nationwide. Additionally, school administrators need to look closely at the legal and financial consequences of ignoring the dangerous school environment. The American Civil Liberties Union summarized eight lawsuits from 1998 to 2003 in which LGBT youth brought successful lawsuits against schools where they were harassed.7 In states from a broad-range of geographic areas, the courts awarded verdicts from $130,000 up to $451,000.8 In 2003, a federal appeals court ruled that schools can be held liable when they ignore the harassment.9

If the fear of allowing children to be driven out of school by bullying is not enough to bring reform, possibly the threat of high-dollar judgments can make reformers out of school administrators. With the statistics reported by SIECUS and the NMA, there is definitely a growing population of potential plaintiffs in our public schools today. Further, the cost of failure to matriculate from high school is immeasurable. For each student who cannot obtain a high school diploma, much less a college education due to harassment, the loss to our economy could prove even more costly.

II. A DIFFERENT APPROACH: THE HARVEY MILK SCHOOL

In 1985 the Hetrick-Martin Institute, a gay-rights youth advocacy group, opened the Harvey Milk School to provide a safe environment for high-school-aged children.10 In 2003, the New York City Department of Education began a partnership with the existing school to renovate and expand the facilities to accommodate more children with funding from the City.11 The school serves approximately 170 children in grades 9 through 12 and its mission is to "establish and promote a community of successful, independent learners by creating a safe educational environment for all young people."12

Located in the Manhattan region of the New York City schools, the Harvey Milk School is a voluntary program for "all students, regardless of sexual orientation" a "rigorous academic program with all the necessary support systems to foster the development of an individual's character, self-respect and ability to succeed in a diverse community."13 The school's focus is on educating children who are "at risk of physical violence and/or emotional harm in a traditional educational environment" through a four-year, fully accredited high school.14 The student application provided on the website requests standard information regarding parent and/or foster care, insurance, income, and contact information.15

This year the Harvey Milk School has operated for nearly 20 years as an educational institution. To its great credit, 95 percent of the students who attend this facility graduate, and over 60 percent will progress to advanced programs or college.16 These graduation and college enrollment rates are higher than the averages for other high schools in New York City.17 This success rate indicates that the provision of a harassment-free environment may be a viable alternative for educating these at-risk LGBT youth.

III. LAWSUITS AND LEGISLATION

In the late summer of 2003, a group of parents joined with New York State Senator Ruben Diaz, Sr. to file a lawsuit to challenge the use of public funds for the Harvey Milk High School.18 This suit contends that the school violates the New York City Department of Education anti-discrimination policies as well as the Constitutional rights of heterosexual students.19 Senator Diaz has stated he is opposed to segregation and that the funds used for the Harvey Milk School would be better spent on programs to protect all students.20

Alternatively, federal legislation does not reflect Senator Diaz' beliefs. The No Child Left Behind Act of 2001 (NCLB) requires that school systems become accountable for meeting academic standards, but also provides freedom for administrators to use federal funds to explore new methods of education.21 Under the NCLB schools can transfer "up to 50 percent of the federal formula grant funds they receive under the . .. Safe and Drug-Free Schools program . . . without separate approval."22 The NCLB places a premium on programs with proven, verifiable results.23 However, state access to future federal funding will be determined by a school system's ability to meet academic performance, attendance, and matriculation standards.24

IV. ANALYSIS

Although Senator Diaz's arguments have some merit, and the thought of a small, primarily LGBT youth school appears to be segregation, there are many factors present in this program that make it likely that Senator Diaz' suit will fail. The students enrolled at the Harvey Milk School are not "similarly situated" to other students in the New York City school system. These students are in a unique situation because they are more susceptible to harassment and violence than other students due to their sexual orientation.25 Professor William Rubenstein of U.C.L.A. Law School believes this defense could be used by the school system successfully.26 The extreme dropout rates for LGBT youth sets these children apart in a manner that has been documented and can be verified.27

In addition, the recently enacted NCLB's promotion of programs with a proven track record lends support to the New York City Department of Education's expansion of the Harvey Milk School. With the high graduation and college enrollment statistics enjoyed by the school, it is difficult to argue that it has not been a success. The accountability of the states as a prerequisite for receiving continued federal funding may take many school systems into methods previously considered too radical for implementation.

Finally, the Harvey Milk School has pointed out that all students at risk for dropping out or failing school are encouraged to apply for admission, even if they are not homosexual.28 Although space is limited, any at-risk student will be considered for admission to the Harvey Milk School program.29

Individuals on both sides of the Harvey Milk School debate agree that regardless of whether this school remains a partnership with New York City, it is not capable of serving all the LGBT students in the New York City public schools. Unfortunately, funding is not currently available to build more schools throughout the City for students to access programs similar to that at the Harvey Milk School. Therefore, mainstream public schools must address the issue of harassment of LGBT youth and find solutions that can be implemented within the mainstream setting.

In a 2000 article published in the Berkeley Women's Law Journal, Vanessa H. Eisenmann proposed using Title IX to prevent anti-gay harassment.30 Title IX, enacted in the 1970s, gave students who were treated disparately based on their gender a private right to sue.31 This article suggested that, with legislative broadening of Title IX, the courts could eliminate anti-gay harassment in schools.32 At the school administration level, almost every school system currently has a zero tolerance, or no violence policy in place. Full enforcement of any of these already-existing mechanisms could reduce and possibly eliminate the harassment that LGBT youth endure daily.

Unfortunately, these laws, policies, and programs have existed for years without a significant reduction in this violence. With the current drop out and suicide rates, far too many children are being exposed to an unacceptable level of risk. If the Harvey Milk High School can assist even 170 students per year, that program - and others like it - should be used to its fullest extent until a better system can be utilized.

Ideally, all children could be educated without fear of harassment or physical violence. As Senator Diaz himself stated, City officials should work to protect all students.33 he further stated that the children in need of segregation "are the bullies .... [T]he homosexual kids, they are not the ones with the problems."34 However, the LGBT youth should also not be the victims of our failure to protect all students.

V. CONCLUSION

School systems throughout the United States must create stringent safety programs and procedures and enforcement should be implemented. Separating transgender youth from their peers is not a permanent solution, only a means to an educational end for a few dozen children in an immediately desperate situation. Now that New York's Department of Education has recognized the serious problem facing it, there must be radical change to eliminate the problem at its source-which is not the children who are harassed. The no tolerance violence policies, Title IX, and disciplinary methods available to school staff and administration should be sufficient to curtail the harassment and violence. However, it will take a concerted effort from administrators at all levels of teaching and staff to bring about the needed change.

Rebecca Bethard