Get Used to It: Ep. 165, "Voices of Our Lives: Stuart Biegel"

(letters clack) (letters twang) (lighthearted music) - Hi, welcome to "Get Used To It". I'm Sheila Kuehl, and as always, I will guide us through this wonderful hour of conversation. Every so often on "Get Used To It", we do one of a series we called "Voices of Our Lives". And today, my guest is Stuart Biegel, Professor of Law and Professor of Education at UCLA, and one of our national experts on an issue that's on everybody's mind these days. And that is about our ability to be out at school, and how we protect our kids, and our teachers, and our staff in the LGBT community at the schools. Welcome, Stuart. - Hi, Sheila. - [Sheila] Glad you're here. - Good to be here. - So people are always a little curious about who people are when they're doing, sort of doing this work. So let's, if we may, start with just a little bio on you. Where did you grow up? - I grew up at LA, but I was born in New York. Spent a lot of summers in New York growing up after we moved here. - And so do you still think of yourself as a New Yorker? - In some ways, but more of a San Franciscan than anything else at this fora. - And how did you get out to California? - Well, when I was six, my father, who had been in the Marines and stationed in California for part of the time, has told my mother that he wanted to move to LA, and my mother didn't wanna leave her family, and the marriage almost broke up as a result. I think had that happened 20 or 30 years later, that marriage would've broken up, and my sister would've never been born. - But your mother acquiesced? - Yeah, I would've been a New Yorker surely in that situation. (Sheila laughs) - That's a familiar history to me, I'll tell you, because when my folks moved here from Missouri, my mom didn't wanna move either. But once she saw the sunshine in the middle of a snowy season, she was a little more relaxed about it. - The weather certainly was a draw. Although I enjoyed those, the snowstorms when I was a little boy, never felt cold when you were a little boy. - That's true, well, I guess if they put all those wonderful snowsuits on you or whatever. - Right, right, bundled. I have pictures of myself bundled up with layers and layers of scarves and hats. - So what was your history here that led you to think about going to law school? - So I actually entered UCLA when I was 16. It was not my choice to be that young, but I had skipped the second grade and started school early, and they never gave me that option. So I really wasn't ready for college. I actually left after two years and spent half a year in New York, trying to get a very bad novel published. - (chuckles) Wait, you were 18, and you were trying to get a very bad novel published? - [Stuart] Yes. - Oh, that's pretty outstanding. - Well, it was a terrible novel, and I don't have it anymore. I don't have that novel anymore. It was called "Not For That Hour", and it was about a young man coming to a fictional school very much like UCLA from a small town in Minnesota and very, very cliche, cliche-ish. And of course, no one wanted to publish it. - Well, I mean, but think of the audacity of an 18-year-old writing a novel. I mean, really. - Oh, it's a nice way to view it in retrospect. At the time, no one complimented really. - So having not succeeded at that, did you come back to, back to school? - Came back to school. Majored in English. And then I graduated, and I had to do something. Actually enrolled in our Teacher Education Program. - At UCLA? - At UCLA, the same program that I ended up dropping out of, and the same program that I ended up being in charge of. This is very, I actually- - So you dropped out, but then later, you were in charge of it? - [Stuart] Of the same program that I dropped out of. - Well, that's sort of inspiring to all the dropouts watching the show, I guess. - Well, I actually, you could say that I dropped out three times 'cause I'd left UCLA after two years. I wasn't sure I ever wanted to come back. When I came back, then I entered the Teacher Education Program, and after a month and a half, was sure that it wasn't for me. And then when I finally came back after seeing what else was out there for English majors with BAs (chuckles) definitely girls, (Sheila laughs) plus I enjoyed working with young people. I was placed in a terrible internship situation in a school where the principal faculty were not getting along. And I just, I said, "Why am I wasting my time? This is not working out for me." And it turned out that I wasn't, that I had mono on top of everything 'cause I was burning the candle at both ends. And so I told the coordinator. I said, "I'm not cut out to be a teacher." And she said, "You've got six weeks to go. I can place you in a very supportive setting. I don't care what you do after this, but just get your credential." It was good advice. - Because at least having the credential gave you some options? - Right, and I did become a teacher in LA Unified, and then in private school, and then through that, met, when I finished law school, met the Head of Teacher Education, whose daughter was in my class. She recruited me to come to UCLA. And there, I developed a second specialty in law and education. And so had I not stayed in teaching, who knows where the trajectory would've gone. - It seems like an unusual specialty though. I mean, I know you wouldn't be the only person in the United States, but still, I don't think people really understand the connection between law and education. - Well, for me, it was a way to combine my experiences in education and my position in the education school with my legal training. But so it fit for me very well, but also the fact that so much of what happens in education is driven by the law today or collides with the law. And the increase in litigation, the increase in education-related legislation, there's so much, so much in areas ranging from campus safety to religion, to equal opportunity, No Child Left Behind, LGBT issues across the spectrum, gender equity, disability rights, bilingual education. Just it's an amazingly wide ranging and exciting field. - Well, it seemed to me when I was in the legislature, that it was the area that sort of captured everybody's, I wouldn't say imagination, but it was more like everybody wanted to affect education. It was a feeling that of all of the areas that in which we could legislate, there was something everybody wanted to have a piece of it. Why do you think that is? - Well, education more than most other things shapes our future. And so that's, I think, that's a key aspect of it. Also, everybody thinks they're experts in the field, which is not always good as you know. - Right, I went to school, therefore I'm an expert. - Right, or I was a parent or I'm a parent, therefore I'm an expert even though many parents, of course, are not expert at all. (both laughs) - No, because the qualifications aren't real high too. - Right, you don't have to pass the test. - Right, exactly. Well, two things, if I could go back a little bit in history, what was it that made you wanna go to law school? - So when I was in the ninth grade, we had to do two career reports, pick two careers. And interestingly, I chose teaching and law, but I was always interested in legal issues. And even though I was an English major, there was a lot of conversation in our family, and among my friends about issues. We always watched "Perry Mason" and "Reruns", for example, and loved them, and talked about them, and fascinated by legal developments nationwide and worldwide, so. But the specific motivation for law school was that I was very interested in land and wanted to be a real estate lawyer. I laughed because I lost that vision along the way. I used to go hiking a lot with my friends in the Santa Monicas, and in Northern California in the redwoods. And one Sunday afternoon in Santa Cruz, looking out at the redwoods, and these beautiful ferns, and creeks, that I really love land. Maybe I could work something having to do with land. So we got together after the hike for a beer, and an early dinner, and just reflecting, "Well, how could I do that? Well, maybe I could be a real estate lawyer." It's kind of a funny- - Well, it is funny, but I'm not gonna make fun of it because the thoughts that we have along the way in our lives that get us to do things are often silly in retrospect, like how could I have ever thought that I would do that? but it seems to have led you in a direction that's worked out very well, certainly for us, to have you in those positions. - [Stuart] Oh, thank you. - Well, but the other question then, it really goes to sexual orientation. I think we both had the conversation about, let's see, shall I call it being a late bloomer? - Yes. - I'm not quite sure, but when did you have a suspicion that you might be a gay man or a gay young man? - When I was a little boy. - [Sheila] Really? - I mean, I can remember feelings back when I was five or younger, but of course. - You don't do anything at that point. (chuckles) - Well, maybe you do, but you don't know what you do or- - [Sheila] Right, right. - I did have some mischievous friends, but I've only been out since late '02 or late '03, so definitely a late bloomer. Some people at that point, of course, never break through. - But it was interesting when you were talking about your book to me earlier, the failed novel, the terrible cliched novel. There was some aspect in that, right, about or at least a character? - There was a gay character, and the main character who roamed with the gay character actually experimented with gay sex with the gay character and decided he didn't like it. But he did experiment with it. And as I was at the time as a teenager, without ever acknowledging that I was gay. - And did you have experiences in school like young people are having now in terms of harassment and just problems with other students? - Oh, absolutely, I was younger than everybody. It was all skinny, braces, and glasses. Although I got to be a pretty good basketball player, mostly after high school. My friends and I used to take on other folks, playground basketball in the area. But there's no question that I was a victim of bullying, and people used to make fun of me for throwing like a girl and running like a girl. I never tried to throw like a girl or run like a girl. And my father was a platoon sergeant in the Marines, and a very good athlete, and he tried to teach me how to throw and run. So my role model was a very straight, macho type, A-alpha man, and yet, I threw like a girl and ran like a girl. So they made fun of me. But at times, I joined in making fun of others so that they wouldn't make fun of me. I don't know if I was more bullied than participating in. I was probably more bullied than participating. - But you did participate too. We've heard this from other students too. - [Stuart] Yes, of course. - It's kind of like to protect yourself, you might join in. So it became though an aspect of your teaching, right? I mean, there wasn't a lot of scholarship about LGBT issues, but it seems as though there came to be an interest about it a little bit in schools. - Once I came out, I got involved with the Williams Institute at UCLA right away. - Should probably say what that is for our viewers. - The Williams Institute is probably the only think tank of its kind nationwide that focuses on legal issues in the area of sexual orientation and gender identity. And they do amazing work. It has grown enormously in the 10 years it's been in existence. And when I came out to the director, Brad Sears, he put me on the faculty advisory committee right away. He wouldn't take no for an answer 'cause I was already established as someone with expertise in education law at the time. And so many of the legal issues having to do with LGBTs are, of course, education-related. So I got involved with them, and I immediately started thinking about a law review article that I could write in this area. I also started including the issues in all my educational classes. - Not before you came out, but after you came out? - I wouldn't go near the issues. - [Sheila] Before you came out? - Before I came out. And occasionally, they would come up in passing, but I don't even think I assigned more than a handful of pages in any given course. - Kind of because of being afraid of being found out, maybe? - Well, I wasn't even out to myself. So it was less of a fear than it was I didn't want people to think I was good. - [Sheila] Yeah. - The same reason I never wore pink or other things that I wear now. - (laughs) That you're braver about now? - [Stuart] Oh, after like- - Nothing like honesty, right? - Well, after I came out, I started accessorizing all over the place. I'm down to one silver ring, but I had multiple silver rings on, on fingers of both hands. I was wearing bracelets and pink necklaces. You should see me. - (laughs) I'd love to see the pictures. - And I was teaching in my law school classes, and people, they allowed me to teach with it. - Nothing, I'm saying, nothing like freedom. It's really interesting. - [Stuart] Yeah, yeah. - Well, look, I wanna talk a little bit about the area of education and law, sort of in the broader context before we get to the LGBT context, because that's a fairly new area, I think, in this, in comparison. But you had quite an experience a short time ago. As I recall, you were on a panel with some of the plaintiffs from some of the famous sort of school cases, which I find that fascinating. Will you tell us a little bit about education, and law, and that kind of stuff, and what that panel was like? - So this panel was organized by one of three major plaintiffs in the school: student freedom of speech cases at the K-12 level, Matthew Fraser. There were three major Supreme Court cases dealing with student First Amendment rights. And one was the Tinker case brought by John Tinker, who wore a black arm band to school in Iowa protesting the Vietnam War. - [Sheila] Oh, yeah. - Then Matt Fraser gave a arguably inappropriate and sexually-suggestive nominating speech at a high school student government assembly in Washington state. And then Joe Frederick in the case that's become to be known as the "Bong Hits 4 Jesus" case, held up a sign outside his high school in Juneau, Alaska when the Olympic torch light came by. Ostensibly, just to get on TV, which he did, and the principal demanded that he take the sign down. Other friends who were holding it decided to listen to her. He defied her, and he had an ongoing battle with administration anyway, and he was punished. So all those cases went all the way to the United States Supreme Court. And I've been teaching about them as they've emerged. And then I got to be on a panel with all three of the men who brought these lawsuits, John Tinker who's now in his 60s, Matt Fraser in his 40s, and Joe Frederick in his 20s. That was just this past summer at Stanford Law School. - That must have been fun. - It was great, and they were very happy to see me too, so. - Well, people, I wanna get back to that too, because of your reputation, but people don't really understand what it's like to be a plaintiff in a case. I mean, you hear Brown versus Board of Education, everybody says, but who is Brown? You know what I mean? - [Stuart] Right. - In everybody's mind, they would say, "I've no idea." And Tinker versus Des Moines, it was Des Moines, right? - [Stuart] Ehm-mmm. - And so there's a real person behind all these cases. - [Stuart] Right. - So one kind of case relates to the ability of students to have free speech in schools, but it's not the same as yours and mine on the outside, right? It's a more limited notion. It seems like education and law is very much like prison and law in a way, what they can tell you that you can't do. - I think that that is a very interesting parallel, and I think it works in freedom of expression. With religion, it's a little trickier. The religious aspect and the interplay with the equal opportunity issues, with the different civil rights movements from the African-American Civil Rights Movement, to the Chicano Rights Movement, to the push for greater equality among Asian and Pacific Islander communities, to disability rights, to women's rights, LGBT rights. There are parallels, but of course, there are differences as well. - What are some of the religious issues within schools? - So it's interesting. I was talking to some of the folks here before we started the program today. I just happened to be teaching a class, my class at the law school on some of the religious issues today. - [Sheila] Oh, yeah. - And we have two religion clauses, of course, what's called the Establishment Clause and what's called the Free Exercise Clause. The Bill of Rights begins with religion. Some say it's a coincidence, some say it's not. But the Establishment Clause, of course, prohibits the establishing of religion essentially in the public. - By a government? - In the public sector by a government or by a public educational institution, which is seen as an arm of the government. And free exercise is more of an individual right to practice your religion or not. - So in a school setting, it would be a question of whether the school is creating an atmosphere where a religion is established, even though that is not, like you all have to be Episcopalian. - [Stuart] Right. - But the Free Exercise would be more what students can say, what teachers can say, on campus, off campus. I mean, I think there's been quite a range. - Quite a range. Most of the disputes in the area of religion in the schools implicate the Establishment Clause. There are so many of them. And they cover everything from displays to programs that are put on by teachers or the student council to public money for private religious education disputes, overfunding, on those fronts. - But there must be some in the free speech area now because students, primarily Christian students, would say that it was their free speech right to say, God hates fags, for instance. Please excuse the language. And whereas gay students would say that they can't do that. Must be an interesting conflict. - There certainly have been some major controversies over T-shirts in the last 10 years. - What T-shirts students can wear or be told not to wear? - Right, right, there are in my book, which I know we're gonna get much more into in a few minutes, I talked about four major T-shirt cases. Actually, one of them is not LGBT-related, but it's religious. It's religious in nature. It's a student in Ohio who used to wear almost, who used to wear Marilyn Manson T-shirts, different store-bought shirts of different types. He loved, apparently, he loved Marilyn Manson. Every day, a different shirt. One of the shirts was arguably very offensive to religious students. It showed up a picture of a three-headed Jesus pointing at three different directions. And the caption was, "See no evil, hear no evil, speak no evil." And then on the back, had the word "beLIEve" with the letters L-I-E bolded. And the school administration, not right away, but when he kept wearing it, they asked him to, they told him he could no longer wear it, because it was inappropriate, and arguably offensive to many in the school community. So he lost that case two to one in the Court of Appeals in Ohio. But then there were three T-shirt cases involving T-shirts that were arguably offensive to LGBT students and members of the community, so. And they went in different directions. One was a sweatshirt in Minnesota that a student wore that said "Straight Pride", and on the back, had a picture of a boy and a girl, or a man and a woman holding hands. And it was a homemade shirt, sweatshirt, and he drew on it, unlike the Marilyn Manson shirt, which was store-bought. And he did it in response to a debate during the student's high school Christian Club over what Jesus's reaction, what Jesus would say about homosexuality, which was a very interesting debate. And some students said, of course, he would condemn it, and other students said, no, he wouldn't necessarily condemn it. So one of the students who was sure that Jesus would condemn it was then motivated to create the "Straight Pride" shirt and wear it around campus. The principal asked him not to, thought it would be inflammatory. He went ahead and challenged it in court, and he won, so he won. - So is that the standard really for free speech of that kind for students? About whether it would be inflammatory? - Well, that's one of the things that comes up at the school side level. The courts don't typically use that word, interestingly enough. They go more toward the free speech tests that have been developed in cases such as Tinker that we talked about. Whether it's disruptive or has the likelihood of being disruptive, or whether it would interfere with the rights of others. So there was a shirt in the San Diego suburban area, Poway Unified, where a young man wore a version of a homemade shirt, which on two different days, which said, "Homosexuality is shameful" and cited to Paul's Letter in Romans. And then on the back, on the other side, I forget whether it was front or back, he said, "I will not accept what God has condemned, and then be ashamed the school has accepted what God has condemned," referring to a day of silence demonstration organized by students that the school allowed. That shirt lost. Even though he argued both free speech and religious freedom 'cause he sincerely believed in that, the court, the federal courts at every level over a five or six-year period, nobody ruled in his favor. - Because it was disruptive or potentially disruptive? - Well, interestingly, an opinion by Judge Stephen Reinhardt in the Ninth Circuit Court of Appeals, one of the most amazing federal judges as you know in this country for a long time. He ruled that it... And it was a two-to-one panel, so he was in the majority that the T-shirt interfered with the rights of others. And so the argument being that if an LGBT student, or maybe even someone who's wrestling with their LGBT status, was confronted with that shirt, and at the same time saw that the school didn't do anything, that it could really have a negative impact and a negative psychological impact. - It's such an interesting notion, this idea of balance, which I think is what, when anything gets to the Supreme Court level, it's almost always articulated as a balancing test of some kind. And so here's a student that is saying, "I'm expressing my religion, and I'm expressing my disdain for, my religion's disdain for your lifestyle," as they would call it. And the school is sort of ambivalent. They don't know which student am I supposed to protect. And the court is saying, it's about the impact on the other student, very much like sexual harassment law, which was a brand new notion that even if you said something nice, if I took it as an oppressive kind of thing, that counted. So it seems like they've adopted, or in that case anyway, that the impact on the student, if it interferes with their ability to get an equal education, that counts. - It does, and Judge Posner in the Chicago area case, also a very well-known judge, well-known conservative judge in the Seventh Circuit, ruled that T-shirt that said, "Be happy, not gay", and he ruled that that was not that the student could wear that shirt. And he developed, he articulated a rule that was very interesting. Some are starting to call it the Test Score Rule that if a T-shirt or any article of clothing, as an example, would interfere with the ability of students to do well on tests, then it could be prohibited, and he determined that "Be Happy, Not Gay" did not go to that level rightly or wrongly. - Was that the same Posner that was the Cheapest Cost Avoider Posner? - What that was? - Do you know that one? - [Stuart] No. - I believe it was Judge Posner was a scholar, a published scholar before he was a judge, and he had this theory that you should decide how much money should be spent on taking care of things like pollution, for instance, through a theory called Cheapest Cost Avoider. That is if it costs you a lot of money to keep your car from polluting, but it only costs me a dollar to wear a mask, then everyone should be required to wear a mask, because it was the cheapest cost avoider. I'm certain it was the same Posner. - He's a big law and economics guy, and he's written a lot of- - [Sheila] Yeah, exactly. - A lot of amazing books, so it's likely the same. - So the test that he was talking about is did it hurt you? And when you're taking tests, not did it hurt your feelings? - Although he did acknowledge to his credit and as did the judge in the "Straight Pride" shirt to also rule that that shirt could be worn, both opinions acknowledged that LGBT students do confront a lot of challenges at the K-12 level. And in fact, the Minnesota judge said some of the most amazingly supportive things on behalf of LGBT students, but then ruled that the "Straight Pride" shirt didn't rise to the level of disruption or potential disruption. So they're very interesting cases if you put the Marilyn Manson shirt, the "Straight Pride" shirt, the "Homosexuality is Shameful" shirt, and the "Happy and Not Gay" shirt together, some very fascinating discussions in my law school class is made with these, yeah. - It's just because they seem to go here and then there, and then here, and then there. - [Stuart] Yes, yes. - He's drawing the line, as we say in law. - Right. You could argue that the more egregious shirts sent up are being prohibited, and the less egregious are allowed. But then we talked about the "Straight Pride" shirt, and I'm set in the class as an openly gay man, and the students know it. Well, "Straight Pride", that's arguably not that big a deal. And one of the openly gay students raises his hand and says, "To me, it is a big deal. I would be very offended. And isn't that the same as White pride?" Well, maybe it is, and maybe it isn't. It's an interesting inquiry. - Well, it's a always been a question of sort of who's in power? Because if you say Black pride, people say, "Well, it's you're being told your whole life not to have pride." And therefore this is sort of to combat that kind of message. Whereas with White pride, it's more like saying I'm on top, I'm in power anyway, and I'm proud of it. - [Stuart] Right. - And I guess this is the same sort of notion, but the court didn't see it that way. - Court didn't see it that way. - [Sheila] Right. - In the LGBT class that I teach, which is mostly undergrads, you have a range of views on that as well as to whether the "Straight Pride" shirt is offensive or not. Sorry, to me, the most offensive is "Homosexuality is Shameful" because it goes right to the heart of what I experienced and so many experienced when you start thinking, "Well, maybe I'm gay," and then you think, "Well, that's something I've been taught to be, that's shameful, and that I should be ashamed to even think that way. And my family would be ashamed, and my friends would be ashamed, and my community would be ashamed." So we're taught that in so many contexts even today. And although the student who put that on his shirt might not have been thinking that, the effect can be devastating. And so to me, that was the worst one. And Dale Carpenter, who's an openly gay law professor at Minnesota, conservative man, when he was blogging about this case, he said something that I thought of, "What if you're a young LGBT student, male or female, and you're sitting in class, and right in front of you is the T-shirt?" So it just happens you're sitting right in the back of Tyler Chase Harper, and the shirt that says "Homosexuality is Shameful" hitting you right in the face. And nobody says anything, and you have to look at that, or try to not look at that. I thought that was a real poignant image on his part. - Well, that poignancy seems to be more of a national mood these days. I mean, lately, there's been a lot more attention, unfortunately, because of the number of suicides of young people who have this issue of shame or of being afraid of being found out. - It's very mixed, of course, because as you know, I worked on the book for seven years, started off with- - Let's talk about that book. - [Stuart] Okay. - Which just came out. First, we should know the title of the book, I think. - The book is called "The Right to Be Out", and that was the title of my law review article draft that morphed into a book. And the subtitle is "Sexual Orientation and Gender Identity in America's Public Schools". "The Right to Be Out" is an interesting concept 'cause you would think it would be typically used, but you hear about coming out and being out, but you rarely hear the term, "The Right to Be Out", even though it's emerging under the law. - So what do you mean by it? - The right to be open about fundamental aspects of identity and personhood, which can include, but would not be limited to LGBT status, and the right to be treated equally as a result of that openness. So it's both the First Amendment right, the right to express and be open about a fundamental aspect of your identity in personhood, and a 14th Amendment right under the Equal Protection Clause to be treated equally as a result. - Well, it's interesting because people have asked over the years, is this, I mean, it would be a First Amendment right because all I did was say that I was gay, and now, I'm being punished for saying that. So it looks like a free speech issue and the school is somehow punishing me, but what if the school just fails to protect me? Is that sort of the same thing? - Well, I think so if it's protecting some and not others. So the area of education law that I think that arguably falls under is Discriminatory Discipline. And Discriminatory Discipline could be, it can take many forms, but the two typical ones would be if you respond differently to reports of mistreatment, depending on who's reporting them, and the second would be punishing people differently depending on their actual or perceived group affiliation. - So what are the main aspects of your book? - So the book has, I would say, it's probably two books in one. The first half is a book about the law and education in the area of LGBT issues in the public schools. And the second is about educational policy, and how different ways that schools have addressed and or might address many of the intractable issues that still remain. - What are the main cases in the first section? We talked about the T-shirt cases, but what other kinds of cases have sort of set the law so far about LGBTs, primarily students, but not only, and the schools. - So the four chapters of the first half is a foundational chapter, which starts with cases that are not necessarily LGBT-related, but demonstrate how the First Amendment and the 14th Amendment intersect, and how First Amendment cases have been strengthened by adding in an equal protection component, and how Equal Protection Clause cases have sometimes been strengthened by getting in a free speech component. And in addition, I bring in religion law and show how since religion is also part of the First Amendment, that could add additional strength. And that's something that's not typically mentioned. - How would it add additional strength? By strength, I assume you mean the ability to protect LGBT kids or those even perceived or thought to be LGBT at school. - [Stuart] Right. - How would it strengthen it? - Well, yeah, the typical picture that people have in these discussions is that, well, the Religion Clauses are there for the religious, and they're there for the religious even if the religious want to take an anti-gay position, which of course, isn't always the case. Many people who are deeply religious and affiliated are not anti-gay. - [Sheila] Right. - Many are LGBT themselves. That's important to have said that, but the Religion Clauses are there for everyone depending on... Are there for everyone no matter what their sexual orientation or gender identity might be. So for example, say that an LGBT educator goes to the Metropolitan Community Church, or a Universal Unitarian Church, or a branch of Episcopalian Church that is supportive of LGBTs, and views himself or herself as a very proud open member of LGBT community, and the religious community, and wants to be open about that. And so students ask him or her, "Where do you go to church?" Say, "Well, I go to BCC," which is an LGBT synagogue in LA. School officials might be very uncomfortable with the teacher saying that, but you could argue that just as the straight teacher down the hall is allowed to say, "Well, I go to this particular church in my community," that may have nothing to do with LGBT. So that's one example where the freedom of religion intertwined with freedom of expression in a way that includes both. And another, just briefly, would be if a school tries to make decisions relating to LGBT youth, or LGBT educators, or both, based on religious doctrine. You're not allowed, in the public sector, to do that. So there are many instances, although they're not articulated in this way in this era, but still today, many school policy decisions are based on the religious, a particular religious interpretation of Scriptures that is anti-gay. - So the first chapter is foundational. - [Sheila] Right. - And then what? - So then there is a specific chapter on LGBT youth, and then a specific chapter on LGBT educators, and then a chapter on curriculum, religion, morality, and values. - Well, that sounds like a... And there are cases that involve curriculum and values in education? For example, what would a case involving curriculum be or have been? - So the two major cases involving curriculum and education are probably the Mozert versus Hawkins County Board of Ed case out of the Bible Belt in the 1980s, a Tennessee case. And Parker v. Hurley, just out of the First Circuit in Massachusetts in '08, which was famously or infamously distorted or referenced, depending on your point of view, and one of the most famous "Yes on 8" ads. Should we talk about both, or should we zero in on Parker v. Hurley? - Well, let's start with that. Although it's a national show, and so we're not only talking about Prop 8, but I think the notion of the misuse of a court case in these anti-gay marriage ads in California is interesting. What did they do? What was the holding? And then what did they distort? - So Parker v. Hurley was about, was two parents who complained. In one case, they were both the parents of young people in the primary grades, and at Massachusetts public schools. And in one case, the boy was given a package of materials, diversity-related materials. And one of them had a picture, among in the package was a picture of... He wasn't the only one, all the students were given such a package. And there were a couple of pictures of different families, including a family, at least one family that had two gay parents. In the other case, the teacher read the book "King & King" out loud in class. And so the parents challenged this as a violation of their constitutional rights to direct the upbringing of their children under the 14th Amendment, and also as a violation of their free exercise. - Their own free exercise of religion? - Their own free exercise rights. So the ruling went against the parents. - In both of the cases? - And as it did in the Bible Belt case 20 years earlier, and as it typically is the case in sex ed-related cases, federal courts have been consistent across the country in ruling that parents don't get to come in and challenge the curriculum, that they have the opportunity by electing school board members, and electing governors who might appoint state boards of education. They have a say in what goes on. - And also it would be intensely chaotic if every set of parents was directing the curriculum in a different way. I mean, it would be impossible to have any kind of a unified curriculum at all. So it seems rational. But you said that the proponents of Proposition 8 in California misused this opinion. - And a very similar version of the same ad with the same reference happened in Maine, and was used to help defeat, to help that proposition pass, which ban the legalization of gay marriage in Maine. - So what did they say in the ad about this case? - So the case started, the ad starts off where a young girl is coming up. "Well, mommy, mommy, guess what I learned in school today?" "Oh, what, sweetie?" "I learned that boys can marry a boy, and I can marry a princess." And the mother looks horrified. And I think she had "King & King" in her hand. And then a professor from Pepperdine Law School comes on and says, "Think it can't happen? It's already happened." And he goes on to say, "When Massachusetts legalized gay marriage, kids were taught blah, blah, blah." Well, this, if you look at the Massachusetts curriculum, of which this was a part, it was developed and implemented before gay marriage was legalized in Massachusetts. And books such as "Heather Has Two Mommies" have been appearing on the shelves, as you know, quite a while before Massachusetts legalized gay marriage. So to say that it was because of Massachusetts legalized the gay marriage, and that would happen here, if we legalize or kept gay marriage legal, like what happened in Maine, it's a distortion. - Well, their whole, excuse me for my opinion, but the whole proponents set of ads was a distortion because they were saying you will be... Because you, all students must learn about marriage in California, if you have gay marriage, then they're going to be forced to learn about gay marriage. Well, the first premise was completely false. There's nothing in California law that says they have to teach about marriage. And therefore, and they don't. I mean, if you could ask your own kids, how much teaching do they get about marriage in school? - They referenced that they actually, the second distortion, there were three distortions altogether, so that was the first. The second distortion is they actually showed an excerpt from Senate Bill 71, which you authored, which it is the section where you can have comprehensive sex education if you want to, you don't have to. But if you do, you have to teach respect for marriage and committed relationships. And they highlight the word marriage, ostensibly, as evidence that you have to teach about- - Yes, that was one of those amendments that I had to agree to. So the blue dog Democrats would vote for a reasonable sex ed bill in California, and see how it comes back and bites you when you're reasonable and agreeable. - I know that that's true. And then the third (coughs), sorry, the third distortion is perhaps the worst, in my opinion, where the professor actually says that the court ruled that parents had no legal right to object. Those are his exact terms. And then you see in big letters, no right to object. Well, the court never used that language. The court never said that the parents have no right to object. It actually said at the end of the opinion that if parents are not happy with curriculum or instructional materials, they have an avenue to go ahead and change their school board, or they have total right to object. And yet, they're saying this in the ads, so that parents think, "Well, we don't vote yes on Prop 8, our rights will be abrogated in a big way." And I actually saw news reports that stated that at "Yes on 8" ads in the last few weeks, and California parents were holding up signs, "Parental Rights", "Yes on Parental Rights", "Yes on Prop 8", to a great extent linked to this ad when Prop 8 had nothing to do at all with parental laws. - Well, their polling showed them that people did not actually oppose gay marriage, that it was sort of like whatever people... If they wanna get married, that seems more stable to me, it seems like a good thing. So in order to pass the proposition and pass the ban on gay marriage or marriage equality, they had to make it be about children. And that has been very interesting. When I first brought the bill to protect students in school against discrimination on the basis of sexual orientation or even perceived whether it was not actual, I mean, members who voted for the bill were hung in effigy outside their offices. - [Stuart] Oh. - There was incredible feeling and passion, weeping, and the gnashing of teeth by parents about how horrible it would be. And this was to protect children against discrimination, how horrible that would be for the entire system of education. So it seems like your book is a breath of fresh air and some common sense. - [Sheila] Well, thank you, Sheila. - (laughs) You're welcome. Now that you said the second part was really about policy. - [Stuart] Right. - How is that different from the law? - So policy is what schools... One way of describing or defining policy for purposes of this book is to see it as about what schools, and school districts, and boards of education at the local and state level decide should be done on a day-to-day level. Policies have the force of law, of course. They are driven by the law, but it tends to be more, "Okay, so we have these legal requirements. What are we gonna do for our science lesson tomorrow or for our history unit this month?" Curricular policy is an example of that. It's not the only example. - So let me ask you, Stuart, with just five minutes remaining actually in the show. How quickly it goes when you're having a good time. - [Stuart] Wow. That was quick. - I know it is fast, isn't it? In the big picture, this has been a, and become even more a significant part of your life. Why do this? I mean, it's personal, but also you're working to protect an awful lot of young people. What drives you to do this? - As I think I told you, when I did finally break through and come out first to myself, and then to the world, I looked around, and there I was at UCLA. People saw me as an expert in education and law. I was training future principals. I have trained many future teachers. I was training future lawyers. I was teaching about technology, and privacy law issues, and disability rights as well, and I was thinking, "Well, LGBT issues fits right in. And there's a lot of work to be done." So it was a natural thing to do. I didn't have to seek out a new job. I didn't have to get a whole lot of permission. I got permission to start a new course on LGBT issues in education, the first one ever in the education school, but mostly, it was about just recrafting my courses and starting to write about something that I was very passionate about. And it just kept being reinforced by colleagues, and friends, and the community. And I was also monitoring the public schools in San Francisco, and the people in the Bay Area had a tremendous impact on my work as well. And so it's been very gratifying. And of course, events keep showing that there's more work to be done. - And do you think that, do you think we will improve in our schools around these issues? - Well, I'm the perennial optimist. I tell my students when I stop being an optimist, I'm gonna stop teaching in this area, so the perennial optimist. We have improved in a lot of ways. And of course, your legislation in California played a big part in that. But we still have a ways to go. There's no question. - Stuart, thank you so much for being on the show. I really, really appreciate it. - [Stuart] Thank you, Sheila. - And I appreciate your work too. And say the name of the book one more time, because I know everyone will want to go buy it. - The book's called "The Right to Be Out: Sexual Orientation and Gender Identity in America's Public Schools". - So that's the issue. It's about our schools, it's about equality. Glad that you joined us today. And as to protecting all our students in the schools, "Get Used to It". (lighthearted music)