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Culhane: How
to stop gay bullying
, Professor of Law, Widener University
04.2010 12:35pm EDT
04.2010 12:35pm EDT
How can we stop the bullying against LGBT
students? It turns out that sometimes, unfortunately, you have to sue
the bastards.
Recently, a lawsuit was settled between a bullied, gay high schooler from upstate New York
and the school district and officials who permitted the mistreatment to
go on for more than a year. Jacob, (or J.L., as he was known in the
complaint) will receive $50,000 in damages, as well as legal fees and
the cost of therapy. And the school district has also agreed to conduct
anti-harassment training of employees.
I’m sure that more than
one reader has cringed while reading about the bullying that this poor
14-year-old kid from Mohawk High School endured at the hands of his
fellow high school students. The complaint, filed by the New York Civil
Liberties Union, is painful to read, as it details physical violence and injury, death threats,
destruction of property, name-calling (including “pussy,” “bitch,”
“cocksucker,” and “faggot” to name just a few), and the heart-breaking,
unrelenting misery that Jacob suffered.
His father, whose
repeated efforts to get the school officials – especially the principal –
to do something, went unheeded. Over time, in fact, it became clear
where this guy’s sympathies lay: He told Jacob’s dad that he wasn’t
going to change what the school was doing in order to “cater to
homosexuals.”
Even though the school has a clear policy against bullying , policies don’t help
if the principal is oblivious, or worse.
The evidence and the
New York State law were clearly on Jacob’s side, and then his case
received an unexpected and welcome jolt – the Obama Department of
Justice moved to intervene on behalf of the bullied kid.
This
was a very big deal for a few reasons.
First, it demonstrated a
steely commitment to civil rights that not been in evidence during the
Bush Administration. DOJ’s position was very aggressive, especially
since taking it required taking a controversial stand on an unsettled
but important issue: Does Title IX – the federal law that protects
against gender discrimination in education – also cover discrimination
based on gender stereotyping?
Maybe we’ll finally get ENDA
sometime soon, but for now federal law doesn’t cover discrimination
based on sexual orientation, so there had to be some other legal basis
for the intervention. The Civil Rights division of DOJ argued that the
school’s treatment of Jacob was based on his non-conformance with gender
norms, and was therefore a kind of gender discrimination.
Reading
the complaint, you’d be hard-pressed to disagree. As much as fellow
students were made uncomfortable by Jacob’s homosexuality, that fact
wasn’t even revealed until fairly late. It was more that he was
too…girlish. The other kids hated his make-up and dress style, and some
of the epithets I listed above are a reaction to gender transgressions.
Of
course, homosexuality is itself a kind of gender transgression, so
these categories are kind of blurry, shading into each other. And DOJ
skillfully exploited the fluidity of discrimination to stick up for
Jacob and to send an important message from the Obama Administration
about its view of this kind of (in)action by school officials. Attorneys
disagree on whether Title IX covers this kind of case , but there’s
good Supreme Court precedent for this position from the employment
context (where Title VII applies), and that seemed to be good enough for
DOJ.
This brings me to the second reason that DOJ’s move to
intervene was so important: Recall that this is the same DOJ that filed a
horribly offensive brief defending the Defense of Marriage Act; a brief
that caused the blogosphere (including this
blogger ) to erupt in justified anger. So the move to intervene
represented real progress by the Obama Administration – progress that
can be made even without legislation.
Let me close with a
heartening statement that appeared on the Mohawk website the day the
case settled:
“[We] hope that the Mohawk Central School District
can serve as a model for other school districts confronting issues of
bullying and intolerance of lesbian, gay, bisexual, transgender, and
gender non-conforming students.”
————-
John
Culhane is Professor of Law and Director of the Health Law Institute at
Widener University School of Law in Wilmington, Delaware. He blogs
about the role of law in everyday life, and about a bunch of other
things (LGBT rights, public health, sports, pop culture, philosophy and
lots of personal stuff) at: https://wordinedgewise.org A fuller bio can be found here https://law.widener.edu/Academics/Faculty/ProfilesDe/CulhaneJohnG.aspx .