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'I just want them to wake up,' gay student says as he sues Buffalo schools

Byshop Elliott doesn’t consider himself an activist, or the one you’d normally find on the front lines during a protest or a march.

But when repeated attempts to start an after-school club for gay and lesbian students at his high school went ignored by the principal, Elliott knew he had to take a stand.

So the 11th grader, who is gay, sued McKinley High School and the Buffalo school district over the right to start a Gay-Straight Alliance at the school on Elmwood Avenue.

"I’m not trying to stir the pot," said Elliott, 18. "I just want them to wake up."

The lawsuit, in fact, claims a pattern of discriminatory actions against lesbian, gay, bisexual, transgender and queer students by longtime McKinley Principal Crystal Boling-Barton. The suit alleges:

  • Students are warned during announcements they are not permitted to bring same-sex dates to the prom;
  • Couples tickets are reserved only for opposite-sex couples; and
  • Same-sex couples dancing together have been known to be separated by the principal.

The McKinley case has caught the attention of the New York Civil Liberties Union, which is representing Elliott and filed the lawsuit Wednesday in federal court.

The NYCLU said it reached out to the school district several times dating back to last August, asking officials to intervene in the situation at the high school.

Still, nothing has happened, said Robert Hodgson, Elliott’s attorney.

"In an ideal world, you would not have to bring a lawsuit," Hodgson said. "You would not have to stand up to the people whose job it is to protect you. Byshop shouldn’t have to do that."

A school official on Wednesday evening said the district had just received a copy of the complaint and is in the process of reviewing it.

"These are allegations the district takes very seriously and we intend to investigate them to get to the bottom of this," said Nathaniel Kuzma, the school district's general counsel.

When asked about the NYCLU reaching out to the district, Kuzma said he also intends to investigate claims that the district's previous attorney was notified of the complaints at McKinley.

A controversial principal

Other schools in the district have a Gay-Straight Alliance. And the NYCLU noted that inaction by the district in this case seemed odd considering that the Board of Education last year proudly passed a polarizing policy that allows transgender students to use the restroom and locker room that corresponds to their gender identity.

As for Boling-Barton, principal at McKinley since 1987, she has been at the center of controversy in the past.

Nearly a decade ago, a special investigator found Boling-Barton was the driving force in an "excessive" seven-week suspension given to a student who denounced the principal for firing an assistant girls basketball coach. The issue caused a local media frenzy because it forced the student to miss most of her senior basketball season.

Boling-Barton even tried unsuccessfully to get the state to remove a School Board member who was trying to hold her accountable.

Elliott and Hodgson held a press conference Wednesday afternoon on the corner of Elmwood Avenue and Nottingham Terrace, across the street from McKinley, to announce the lawsuit, which requests that the Gay-Straight Alliance be approved at McKinley as quickly as possible. They want to be acknowledged just like any other club at the school.

A Gay-Straight Alliance is a student-run social and support club in which students can discuss issues related to sexual orientation and gender identity.

There were fewer than five of them in schools around the Buffalo region in 2006, but the number has blossomed to at least 63, including clubs at City Honors, South Park and Hutchinson Central Technical High schools and several Buffalo charters, said Marvin Henchbarger, executive director of Gay & Lesbian Youth Services of Western New York.

"They’re growing because there’s a need for them," Henchbarger said.

A three-year fight

Elliott sees the club as more of a safe haven, where anyone is welcome to kick back and take a break from the stresses of the school day. Right now, he said, the students have resorted to an "underground club" to fill that void.

He said McKinley – which has an enrollment of roughly 1,000 – doesn’t have a huge LGBTQ population.

"But it doesn’t matter how many are there," Elliott said, "they’re there."

Here are the details of the case based on allegations made in the lawsuit:

The issue at McKinley dates back to at least the 2014-15 school year, when students interested in starting a Gay-Straight Alliance found a faculty adviser and submitted an application to the principal to start the club.

When the students didn’t hear back, they began posting signs around the school to advertise the inaugural meeting. At that point, Boling-Barton told the faculty adviser the application had, in fact, been denied.

In the spring of 2016, Elliott decided to try again.

He found a faculty adviser and gathered signatures from some 30 students, but was told by an assistant principal it was too late in the year and that Boling-Barton would deny it.

That was odd to Elliott, because he claims an international student club submitted an application around the same time, and was approved. Nonetheless, he let it go and decided to try again at the start of the new school year last fall.

Again, the suit alleges, Elliott secured a faculty adviser, who sent Boling-Barton an application to start a Gay-Straight Alliance in October.

There was no response.

The adviser followed up with an email to the principal a month later, and Elliott even circulated a petition with 136 signatures in support of the club.

Again, no response.

By this time, Elliott had sought help from the NYCLU, which considered the principal’s refusal to approve the club unlawful.

An attorney from the NYCLU "sent five emails and left several voicemails" with district lawyers asking officials step in to resolve the matter at McKinley.

Lack of response 'shocking'

Reports of discrimination against the LGBTQ community are not uncommon, Hodgson said. In fact, the organization gets reports of unlawful treatment of LGBTQ students at schools across New York, particularly upstate.

But, Hodgson said, the NYCLU doesn’t litigate these cases often. When an organization reaches out to inform school districts of a problem – and its responsibilities under the law – the matter tends to get resolved, he said.

Not so at McKinley.

"That’s what is so shocking in this case," Hodgson said. "We’re bringing the lawsuit, because the district was made aware of the clearly illegal situation at one of its high schools and they have chosen to do nothing about it. Based on the time they’ve had, that is clearly unacceptable."

Elliott, a junior, is sociable and active.

Along with working part time, he is in the Foreign Language Club, the Future Teachers Club and participated in cheerleading this year. Elliott said he doesn’t feel bullied at school; in fact, he has received a lot of support from friends and faculty.

But he feels the culture at the top needs to change.

Friends have warned him about taking this on, and the potential backlash, but he shrugs it off: Haters gonna hate.

"It speaks to his courage," Hodgson said, "and how deeply he wants to improve his school for himself, all of his classmates and all of the students who would benefit from a Gay-Straight Alliance there."

"I’m not really confrontational," Elliott said. "I’m only here for another year, but I want this to last. If I have children, I don’t want them to go through this."

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