The Student Nondiscrimination Act: panacea, band-aid…or something in between?
This piece was first published on March 20, 2013 as an op-ed for the Washington Blade.
By Adrian Alvarez, Goldberg-Robb Attorney
As our society has become more aware that bullying is a major social problem, policymakers and lawyers have begun to grapple with the question of what to do about it. Because bullying is a particularly acute problem for LGBT students — a 2009 study showed that almost 90 percent of these students were verbally harassed based on their sexual orientation — much of this discussion has naturally centered around combating anti-gay bullying specifically.
Yet as a lawyer who works on school bullying cases, I worry that there are drawbacks to an anti-bullying strategy that focuses primarily on anti-LGBT harassment. Measures designed to combat homophobic bullying will undoubtedly help many students. But for plenty of others — including many LGBT students — these remedies will inevitably fall short.
Civil rights groups have taken several different approaches to combating anti-gay bullying. Although there are no laws on the books that allow a student to sue a school system for failure to prevent or address severe anti-gay harassment, some groups have argued that Title IX — which prohibits discrimination “on the basis of sex” — should be interpreted to include discrimination based on gender nonconformity or gender stereotypes. Meanwhile, in the political arena, gay activists have backed a bill in Congress called the Student Nondiscrimination Act (SNA), which is modeled after Title IX and would expressly prohibit discrimination based on sexual orientation or gender identity.
But even if the SNA were to pass, and even if courts widely interpret Title IX to cover LGBT students, huge gaps would remain. For one thing, unlike students who report racist, sexist or anti-Semitic bullying, gay students may be reluctant to speak up about homophobic bullying because they don’t want to confirm that they are gay. Likewise, some parents may fear the social stigma that can result from complaining about harassment or filing a lawsuit based on their child’s sexual orientation, especially in very conservative communities.
The bigger problem, however, is that a lot of homophobic bullying takes place in a gray area that can be hard to prove is anti-gay. If one student calls another a “faggot” that’s a clear case of anti-gay taunting. But what if a gay student is regularly called a “pussy” or a “wimp”? Such taunting is probably homophobic, but it’s much harder to prove.
As a result, civil rights groups would be wise to advocate for laws that would allow a student to sue to stop or prevent severe instances of bullying as a whole, rather than limiting their efforts to laws that allow students to sue for anti-gay bullying alone. Currently, there are no federal or state laws that would allow a student to sue for severe and pervasive bullying that is not linked to any discernible characteristic, like race, color, disability, sex or national origin. In other words, there are no statutes on the books anywhere in the United States that would create a private right of action for a kid who was bullied simply because he or she was perceived as different.
In some states, creative lawyers have tried to get around this problem by bringing general bullying suits against school districts under state tort laws. But many of these laws have their own hurdles because they have short statutes of limitation and require parents to put schools on notice before filing a suit. These laws also typically don’t allow prevailing attorneys to recover their fees, which could serve as a disincentive for filing the lawsuit in the first place. And tort actions are often subject to strict immunity laws that protect state entities and their employees from suits, even when the entities or employees have clearly committed a wrong.
The best way to expand legal protections for all students would be the creation of a general private right of action for egregious cases of bullying at the federal and state level. This would arguably provide an even more powerful remedy for gay students than the Student Nondiscrimination Act. Creating an atmosphere in school districts where LGBT students are less likely to be bullied is an important long-term goal. But, in the end, the best way to protect LGBT students may be to try to protect everyone.