The Student Non-Discrimination Act (SNDA):
A Legal Analysis
Jody Feder
Legislative Attorney
June 20, 2013
Congressional Research Service
7-5700
www.crs.gov
R42652
CRS Report for Congress
Pr
epared for Members and Committees of Congress
The Student Non-Discrimination Act (SNDA): A Legal Analysis
Summary
Introduced in both the 111th and 112th Congress and again in the 113th (H.R. 1652/S. 1088), the
Student Non-Discrimination Act (SNDA) would prohibit discrimination on the basis of actual or
perceived sexual orientation or gender identity in public elementary and secondary schools. The
stated purpose of the legislation is to ensure that students are free from discriminatory conduct
such as harassment, bullying, intimidation, and violence. SNDA appears to be patterned on Title
IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in
federally funded education programs or activities, although SNDA does differ from Title IX in
several important respects.
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The Student Non-Discrimination Act (SNDA): A Legal Analysis
Contents
Introduction ...................................................................................................................................... 1
Current Law ..................................................................................................................................... 1
The Student Non-Discrimination Act .............................................................................................. 2
Coverage .................................................................................................................................... 2
Prohibited Acts .......................................................................................................................... 3
Enforcement and Remedies ....................................................................................................... 4
Contacts
Author Contact Information............................................................................................................. 6
Congressional Research Service
The Student Non-Discrimination Act (SNDA): A Legal Analysis
Introduction
Introduced in both the 111th and 112th Congress and again in the 113th (H.R. 1652/S. 1088),1 the
Student Non-Discrimination Act (SNDA) would prohibit discrimination on the basis of actual or
perceived sexual orientation or gender identity in public elementary and secondary schools. The
stated purpose of the legislation is to ensure that students are free from discriminatory conduct
such as harassment, bullying, intimidation, and violence. SNDA appears to be patterned on Title
IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in
federally funded education programs or activities,2 although SNDA does differ from Title IX in
several important respects.
Recently, the Senate Committee on Health, Education, Labor, and Pensions approved legislation
to reauthorize the Elementary and Secondary Education Act. Section 4106 of this bill, known as
the Strengthening America’s Schools Act of 2013 (S. 1094), contains the SNDA legislation.
This report begins by discussing current laws that prohibit discrimination in education, and
continues with an analysis of the specific provisions contained in SNDA, including provisions
relating to coverage, prohibited acts, and enforcement and remedies under the proposed
legislation.
Current Law
Under current law, no civil rights statute explicitly prohibits discrimination in schools on the basis
of sexual orientation or gender identity, although there are several civil rights statutes that bar
discrimination in education on other grounds. In addition to Title IX, the applicable federal civil
rights statutes that currently prohibit discrimination in schools include Title VI of the Civil Rights
Act of 1964 (CRA), which prohibits discrimination on the basis of race, color, or national origin
in federally funded programs or activities;3 Section 504 of the Rehabilitation Act of 1973, which
prohibits discrimination on the basis of disability in federally funded programs or activities;4 Title
II of the Americans with Disabilities Act of 1990 (ADA), which prohibits discrimination on the
basis of disability by state or local governments;5 Title IV of the CRA, which bars discrimination
in public schools on the basis of race, color, sex, religion, or national origin;6 and the Equal
Educational Opportunities Act, which prohibits states from denying equal educational
opportunities based on race, color, sex, or national origin.7 The last two statutes were largely
designed to combat segregation in public schools.
Although none of these civil rights statutes explicitly prohibits discrimination on the basis of
sexual orientation or gender identity, there may be instances in which such discrimination may
1 The House and Senate bills are substantially identical, although there are a few minor differences.
2 20 U.S.C. §§1681 et seq.
3 42 U.S.C. §§2000d et seq.
4 29 U.S.C. §794.
5 42 U.S.C. §§12131 et seq.
6 42 U.S.C. §§2000c et seq.
7 20 U.S.C. §1703.
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The Student Non-Discrimination Act (SNDA): A Legal Analysis
also be a form of sex discrimination that violates Title IX.8 In the employment context, the
Supreme Court has recognized that sex discrimination may encompass same-sex sexual
harassment, meaning that sex discrimination is prohibited even if the harasser and victim are
members of the same sex.9 The Court has also ruled that gender stereotyping is a form of
discrimination on the basis of sex.10 Therefore, if a student who is gay or transgender is being
harassed because of a failure to conform to gender stereotypes, such harassment is prohibited by
Title IX. It is important to note, however, that Title IX prohibits sexual orientation or gender
identity discrimination only when it constitutes a form of sex discrimination.11 Thus, the statute
does not prohibit all forms of sexual orientation or gender identity discrimination or harassment
of students,12 and SNDA appears to be designed to fill this gap.
In 2010, the Department of Education (ED) issued guidance that discusses when student bullying
or harassment may violate federal education anti-discrimination laws and that clarifies a school’s
obligation to combat such bullying or harassment.13 The guidance includes a discussion of when
bullying or harassment that targets lesbian, gay, bisexual, or transgender students may be a form
of sex discrimination that violates Title IX.
The Student Non-Discrimination Act
Coverage
Like Title IX, SNDA would apply to public elementary and secondary schools, as defined in the
Elementary and Secondary Education Act (ESEA).14 Charter schools, which are considered to be
public elementary and secondary schools under ESEA, would also be covered. However, unlike
Title IX, which prohibits sex discrimination in all educational programs that receive federal
funding, including institutions of higher education and vocational schools, SNDA’s coverage
would not extend beyond the elementary and secondary education level.
8 See, e.g., Ray v. Antioch Unified Sch. Dist., 107 F. Supp. 2d 1165 (N.D. Cal. 2000); Doe v. Perry Cmty. Sch. Dist.,
316 F. Supp. 2d 809 (S.D. Iowa 2004).
9 Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998).
10 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
11 For more information on how the courts have handled claims in the employment context that sexual orientation or
gender identity discrimination constitutes unlawful sex discrimination, see CRS Report R40934, Sexual Orientation
and Gender Identity Discrimination in Employment: A Legal Analysis of the Employment Non-Discrimination Act
(ENDA), by Jody Feder and Cynthia Brougher.
12 For more information on sexual harassment in schools, see ED’s policy guidance on the issue. U.S. Department of
Education, Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students By School
Employees, Other Students, or Third Parties, January 2001, http://www2.ed.gov/about/offices/list/ocr/docs/
shguide.html#Guidance. See also, United States Department of Education, Office for Civil Rights, Dear Colleague
Letter, April 4, 2011, http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html.
13 United States Department of Education, Office for Civil Rights, Dear Colleague Letter, October 26, 2010,
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.html.
14 20 U.S.C. §7801.
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The Student Non-Discrimination Act (SNDA): A Legal Analysis
Prohibited Acts
If enacted, SNDA would prohibit discrimination on the basis of actual or perceived sexual
orientation or gender identity in public elementary and secondary schools, as well as
discrimination based on the sexual orientation or gender identity of a person with whom a student
associates. Although such provisions regarding an individual’s “perceived” status or association
with a protected individual are without parallel in Title IX, the difference might be attributed to
the fact that an individual’s sex, unlike sexual orientation or gender identity, is generally evident
to the casual observer. Under SNDA, “sexual orientation” would be defined to mean
homosexuality, heterosexuality, or bisexuality, while “gender identity” would be defined to mean
the gender-related identity, appearance, or mannerisms or other gender-related characteristics of
an individual, with or without regard to the individual’s designated sex at birth.
Like Title IX, SNDA’s prohibition against sex discrimination would extend to all education
“programs or activities” operated by recipients of federal funds. As a result, the scope of SNDA
could potentially be quite broad. Under Title IX, the prohibition against sex discrimination in
education programs or activities has been interpreted to include discrimination on the basis of sex
in student admissions, recruitment, scholarship awards and tuition assistance, housing, access to
courses and other academic offerings, counseling, financial assistance, employment assistance to
students, health and insurance benefits and services, athletics, and all aspects of education-related
employment, including recruitment, hiring, promotion, tenure, demotion, transfer, layoff,
termination, compensation, benefits, job assignments and classifications, leave, and training.15
Presumably, SNDA’s prohibition on sexual orientation or gender identity discrimination could be
interpreted to cover a similarly broad range of education programs or activities.
In addition, SNDA would expressly prohibit harassment on the basis of actual or perceived sexual
orientation of a student or of a person with whom the student associates or has associated. Such
harassment would include conduct that is “sufficiently severe, persistent, or pervasive to limit a
student’s ability to participate in or benefit from a program or activity of a public school or
educational agency, or to create a hostile or abusive educational environment ... including acts of
verbal, nonverbal, or physical aggression, intimidation, or hostility....” Although Title IX does not
have an explicit prohibition against such harassment, the statute has been interpreted to prohibit
such activity. Thus, SNDA’s express prohibition against harassment appears to be patterned on the
current legal standards for harassment under Title IX, as developed by the courts and
implementing agencies. For more information on sexual harassment in the schools, see CRS
Report RL33736, Sexual Harassment: Developments in Federal Law, by Jody Feder.
As is generally common under federal civil rights laws, SNDA would also prohibit retaliation
against individuals who oppose conduct prohibited by the act. This prohibition appears to be
patterned on the anti-retaliation provision in Title VII of the Civil Rights Act of 1964,16 which
prohibits employment discrimination on the basis of race, color, sex, national origin, and religion.
Unlike Title VII and SNDA, Title IX does not contain an express statutory prohibition against
retaliation. Nevertheless, the federal courts have interpreted Title IX to prohibit retaliatory
conduct. In Jackson v. Birmingham Board of Education,17 the Court held that Title IX not only
encompasses retaliation claims, but also is available to individuals who complain about sex
15 34 CFR §§106.31-106.56.
16 42 U.S.C. §2000e-3(a).
17 544 U.S. 167 (2005).
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The Student Non-Discrimination Act (SNDA): A Legal Analysis
discrimination, even if such individuals themselves are not the direct victims of sex
discrimination.18 Reasoning that “Title IX’s enforcement scheme would unravel” “if retaliation
were not prohibited,”19 the Court concluded that “when a funding recipient retaliates against a
person because he complains of sex discrimination, this constitutes intentional discrimination on
the basis of sex in violation of Title IX.”20
If enacted, SNDA would also specify that the legislation shall not be construed to invalidate or
limit the rights, remedies, procedures, or legal standards under other federal, state, or local laws,
and clarifies that the requirements of the act are in addition to those imposed by Title IX, Title VI,
and ADA. Finally, SNDA would also state that nothing in the act shall be construed to alter legal
standards or rights available under other federal laws that protect freedom of speech and
expression, nor to affect legal standards and rights available to religious and other student groups
under the First Amendment to the Constitution and the Equal Access Act.21 For more on this
provision, see CRS Report R42626, Religious Discrimination in Public Schools: A Legal
Analysis, by Cynthia Brougher.
Enforcement and Remedies
Under SNDA, each federal agency that provides federal financial assistance to education
programs or activities would be responsible for ensuring compliance with the act by recipients of
such assistance. As is generally standard with statutes that govern the provision of federal
financial assistance, an agency would have the authority to terminate such assistance to recipients
who fail to comply with the act’s requirements. However, SNDA, like Title IX,22 would include a
provision that limits termination of assistance to the particular entity that is out of compliance, as
well as to the particular program in which noncompliance has been found. SNDA would also
require federal agencies that terminate funding to file a report regarding the grounds for its
actions.
In addition to enforcement by federal agencies, SNDA would provide a private right of action
allowing individuals to sue in federal court for violations of the act.23 Individuals would not be
required to exhaust administrative remedies before suing, and they would be entitled to
appropriate relief, including, but not limited to, equitable relief, compensatory damages, cost of
the action, and remedial action, as well as attorney’s fees. Aside from attorney’s fees,24 the
statutory language of Title IX does not expressly provide for similar rights and remedies.
However, the statute has been interpreted to include such rights and remedies.
Indeed, in an early Title IX case, the Supreme Court held that the statute provides student victims
with an avenue of judicial relief. In Cannon v. University of Chicago,25 the Court ruled that an
18 Id. at 171.
19 Id. at 180.
20 Id. at 174 (internal quotations omitted).
21 20 U.S.C. §§4071 et seq.
22 20 U.S.C. §1682.
23 Unlike the House bill, the Senate version of SNDA also includes a provision authorizing the Attorney General to
bring suit for violations of the act. S. 1088, § 7.
24 42 U.S.C. §1988(b).
25 441 U.S. 677 (1979).
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The Student Non-Discrimination Act (SNDA): A Legal Analysis
implied right of action exists under Title IX for student victims of sex discrimination who need
not exhaust their administrative remedies before filing suit. In Franklin v. Gwinnett County
Public Schools,26 the Court held that damages were available to a student who had been sexually
harassed by her teacher if she could prove that the school district had intentionally violated Title
IX. After Franklin, the appropriate standard for measuring a school district’s liability for sexual
harassment of a student by a teacher remained unsettled until the Supreme Court ruling in Gebser
v. Lago Vista Independent School District.27 In Gebser, the Court determined that a school district
will not be held liable under Title IX for a teacher’s sexual harassment of a student if the school
district did not have actual notice of the harassment and did not exhibit deliberate indifference to
the misconduct.28 Likewise, Davis v. Monroe County Board of Education, decided in 1999,
addressed the standard of liability that should be imposed on school districts to remedy student-
on-student sexual harassment.29 In Davis, the Court held where officials have “actual knowledge”
of the harassment, where the “harasser is under the school’s disciplinary authority,” and where the
harassment is so severe “that it can be said to deprive the victims of access to the educational
opportunities or benefits provided by the school,” the district may be held liable for damages
under Title IX.30 For more information about judicial rulings related to Title IX, see CRS Report
RL30253, Sex Discrimination and the United States Supreme Court: Developments in the Law,
by Jody Feder.
In addition, SNDA would waive the states’ Eleventh Amendment immunity from suit for sexual
orientation or gender identity discrimination within any state program or activity that receives
federal financial assistance. The Eleventh Amendment provides states with immunity from claims
brought under federal law in both federal and state courts.31 Although Congress may waive the
states’ sovereign immunity by “appropriate” legislation enacted pursuant to Section 5 of the
Fourteenth Amendment,32 the scope of congressional power to create a private right of action
against the states for monetary damages has been substantially narrowed by a series of Supreme
Court decisions.33
Taken together, these decisions restrict the ability of private individuals to take the states to court
for federal civil rights violations. They may not, however, apply to states’ voluntary acceptance of
federal benefits that are expressly conditioned on waiver of Eleventh Amendment immunity.
“Congress may, in the exercise of its spending power, condition its grant of funds to the States
upon their taking certain actions that Congress could not require them to take, and that acceptance
of the funds entails an agreement to the actions.”34 Thus, when a statute enacted under the
Spending Clause35 conditions grants to the states upon an unambiguous waiver of Eleventh
Amendment immunity, as SNDA proposes, at least one federal court has determined that “the
26 503 U.S. 60 (1992).
27 524 U.S. 274 (1998).
28 Id.
29 526 U.S. 629 (1999).
30 Id. at 650.
31 U.S. Const. amend. XI.
32 U.S. Const. amend. XIV.
33 Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001); United States v. Morrison, 529 U.S. 598 (2000);
Kimel v. Bd. of Regents, 528 U.S. 62 (2000); Alden v. Maine, 527 U.S. 706 (1999); City of Boerne v. Flores, 521 U.S.
507 (1997); Seminole Tribe v. Florida, 517 U.S. 44 (1996).
34 College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 686 (1999).
35 U.S. Const. art. I, §8, cl. 1.
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condition is constitutionally permissible as long as it rests on the state’s voluntary and knowing
acceptance of it.”36 It is important to note, however, that this area of the law is relatively
undeveloped and may evolve as more legal challenges arise.
Author Contact Information
Jody Feder
Legislative Attorney
jfeder@crs.loc.gov, 7-8088
36 Litman v. George Mason Univ., 186 F.3d 544, 555 (4th Cir. 1999). For more information on waiving state sovereign
immunity, see CRS Report RL30315, Federalism, State Sovereignty, and the Constitution: Basis and Limits of
Congressional Power, by Kenneth R. Thomas.
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