After dropping the issue amid backlash in 2009, the Kanawha County school board is set to vote Thursday on adding specific protections regarding sexual orientation to its cultural diversity and human relations policy.
But it's unclear what exactly the revision could affect, considering related rules already in policies on both the local and state levels. Along with specifically mentioning the gay rights protections, the change would cross out the phrase saying that people must be respected regardless of having any "status protected by federal, state or local law." Instead, the policy would be broadened to require respect for individuals regardless of any "characteristic."
Unlike for "protected classes" such as race and age, there is no overarching federal or state law ban banning discriminating against individuals based on their actual or perceived sexual orientation or gender identity. Kanawha County Commission President Kent Carper said a law the county passed years ago to ban discrimination among its employees for any reason doesn't affect school district workers.
Jim Withrow said he's never seen any complaints of discrimination by school employees based on their sexual orientation or gender identity in his nearly 17 years as the school board's general counsel.
"We're pretty inclusive and broad based in our workforce and employees anyway," he said.
He said the proposed policy change -- which didn't receive any written comments after it was placed on 30-day public comment period last month -- is generally aimed at protecting school employees from harassment, but it would also block discrimination against lesbian, gay, bisexual and transgender individuals in hiring, firing and promotion decisions.
Withrow said Tuesday he hasn't considered to what extent the state employees grievance procedure already protects employees from such discrimination -- though he said the grievance procedure wouldn't be able to help a non-employee who applied for a position and was denied it.
Howard Seufer Jr., a Charleston attorney who has practiced school law for more than 30 years, has said the state grievance procedure bans any discrimination not based on an employee's job duties or agreed to by that worker. Controversy ensued earlier this year over lawmakers' removal of specific protections for LGBT students and school workers from a failed bill to allow charter schools in West Virginia, but that bill would've also allowed charters to opt out of the state employees grievance procedure.
Seufer has also 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."
While the 2009 debate over changing the Kanawha school board cultural diversity and human relations policy -- which included 200 comments on the board's website and criticism from the socially conservative Family Policy Council of West Virginia -- involved arguments that it was needed to protect LGBT students from discrimination and harassment, in 2011, the West Virginia Board of Education unanimously adopted a new policy protecting students statewide from bullying based on sexual orientation and gender identity or expression. Withrow said Kanawha's anti-bullying policy now contains mirrored language.
Kanawha's student behavior policy includes the phrase: "When harassment, intimidation or bullying are of a racial, sexual and/or religious/ethnic nature, the above definition (of harassment, bullying and intimidation) applies to all cases regardless of whether they involve students, staff or the public." Withrow said that line "likely does" already protect employees from harassment based on sexual orientation or gender identity, though he suspects nobody realizes it because it's in the student behavior policy.
"I think that was maybe one of the reasons that we wanted to change this policy, so it was clear that everyone was protected, and not just students," he said.
Ryan White -- the board's newest member, and the only current member who wasn't involved in the 2009 vote not to include sexual orientation in the policy -- said he brought the issue up after being contacted by a constituent. He said he wasn't aware of the 2009 controversy and had simply asked school administrators to review local board policies over apparent inconsistencies, though he said if the policy change up for a vote Thursday "is an expansion, I don't have any problem with that."
"If we have protections for employment, and we have protections for bullying, the intent is to make them consistent, and consistent with state law as well -- the state school board policy," White said.
Fellow board member Pete Thaw said he couldn't remember the issues surrounding his past vote to not add sexual orientation to the policy. After calling Superintendent Ron Duerring for clarification on why a change in the policy was back before the board, he said he'll vote for it this time -- though he didn't know exactly why it had become necessary now.
Becky Jordon -- who joined Thaw and fellow current members Jim Crawford and Robin Rector in the 2009 vote -- said Tuesday she wasn't sure exactly why the policy had resurfaced.
"More than likely, just every now and then, we're just updating policies, so that's probably the reason," she said.
The meeting is 6 p.m. Thursday at the district's central office at 200 Elizabeth St. on Charleston's East End.
Reach Ryan Quinn at ryan.quinn@wvgazette.com, 304-348-1254 or follow @RyanEQuinn on Twitter.