Nearly every state has its own laws addressing bullying, but now federal lawmakers are weighing legislation to protect students from bullying and harassment that would apply to every school and district in the country and could also add an explicit layer of protection for students who are lesbian, gay, bisexual, and transgender.
As debate by the U.S. Senate education committee over a new draft of the Elementary and Secondary Education Act neared a close last month, Democratic Sen. Al Franken of Minnesota for the law to include language specifically protecting LGBT students. The proposal has advocates for school districts worried about the flurry of potential lawsuits it could trigger.
Sen. Franken told the stories of several high-profile cases in recent years in which students who had reported being bullied for being gay or perceived to be gay committed suicide.
鈥淣ine out of 10 LGBT kids are harassed or bullied in school. One-third report having skipped school in the last month because they felt unsafe, and study after study has shown that LGBT youth are more likely to commit suicide,鈥� Sen. Franken said.
鈥淏ut the sad fact is that our federal laws are failing鈥� those students, he said. He compared his proposed addition to civil rights protections to federal anti-discrimination laws that cover students on the basis of race and sex.
鈥淲ell, yet again, we are facing a group of students that is facing pervasive systemic discrimination,鈥� he told members of the Health, Education, Labor, and Pensions Committee. 鈥淭here is no law that prohibits discrimination based on sexual orientation at school.鈥�
The U.S. Department of Education鈥檚 office for civil rights has faulted at least one school district鈥擳ehachapi Unified in California鈥攆or failing to prevent schoolmates from repeatedly harassing Seth Walsh, an openly gay 13-year-old who killed himself last year.
In Mr. Franken鈥檚 home state of Minnesota, where several other students committed suicide, the agency is investigating districts for how they handled the bullying of students based on their sexual orientation.
However, worried that his proposal to make LGBT students a protected class and empower the harassed to sue would be the entire ESEA bill鈥檚 undoing, Sen. Franken withdrew his proposal. He said he would wait until the ESEA rewrite hits the Senate floor to offer his proposal. His bill has 34 co-sponsors, all Democrats.
Alternative Measure
The provisions in Sen. Franken鈥檚 Student Non-Discrimination Act would be in addition to proposed language by Sens. Robert Casey, D-Pa., and Mark Kirk, R-Ill. Their would require schools and districts that accept federal funds to establish codes of conduct that specifically prohibit bullying and harassment for any reason, including for students鈥� sexual orientation and gender identity.
Under the Casey-Kirk bill, all states would also have to track bullying cases and report the statistics to the Education Department, which would have to report the state data to Congress.
That bill has 32 co-sponsors, but Sen. Kirk is the only Republican to endorse it. Sen. Franken said he would work to write his proposal in such a way that Sen. Kirk could endorse it, too.
鈥淭his is not a trial-lawyer-employment act,鈥� Sen. Kirk said in response to Sen. Franken鈥檚 remarks.
鈥淏ut if we can more clearly define rights and focus on education,鈥� Mr. Kirk continued, 鈥渟o the maximum number of students survive and have healthy self-esteem, and ... kids learn a fundamental American value of tolerance, I think this is something we should explore on the floor.鈥�
Whether anti-bullying language and explicit protection for students based on sexual orientation or gender identity would clear both chambers is uncertain. The House companion to the Safe Schools Improvement Act has 106 co-sponsors, including a few Republicans. The House companion to Sen. Franken鈥檚 bill has at least one Republican among its 126 co-sponsors.
Questions on Federal Role
Sasha Pudelski, a legislative specialist for the Arlington, Va.-based American Association of School Administrators, said her organization, which represents superintendents and other district-level officials, can鈥檛 support federal anti-bullying legislation.
鈥淲e believe decisions as to how a school defines, prevents, addresses, and reports bullying should be a decision made by the superintendent, school administrators, school board, parents, teachers, and others engaged community members in the context of state law and existing civil rights protections in federal law and case law,鈥� she said.
Instead, Ms. Pudelski said, Congress should provide money for districts to provide schoolwide, evidence-based bullying-prevention programs.
Roberta Stanley, the director of federal affairs for the National School Boards Association, in Alexandria, Va., said her group would also prefer to have states and districts adopt bullying policies that fit the needs of their communities.
鈥淒epending on where you sit and where you live, it may have never been a problem,鈥� Ms. Stanley said. The NSBA also provides model policies for local school boards to adopt, she said, to guide districts鈥� efforts.
But laws and policies that specify who is protected are more effective than general bullying-prevention measures, said Eliza Byard, executive director of the Gay, Lesbian, and Straight Education Network, or GLSEN, a New York City-based group that works to educate teachers, students, and others about homophobia. She supports both measures because of their unique goals.
A of more than 3,400 middle and high school students by GLSEN found that at schools where the harassment policy specifically addressed sexual orientation or gender identity, more students of all sexual orientations felt safe and reported less harassment and fewer negative remarks at school.
The reason, Ms. Byard said, is that at such schools, teachers and students have a clear picture of what is unacceptable behavior. But only 14 states鈥� anti-bullying laws list the specific grounds on which harassment cannot be tolerated.
鈥淲hen unpopular, potentially difficult, maybe complicated issues come up, teachers may be afraid to act,鈥� she said. 鈥淚f you don鈥檛 name it, they don鈥檛 act.鈥�
But even if neither measure musters the support of the full Senate, language embedded in the addresses bullying, too, although the word isn鈥檛 mentioned.
In the bill, any state that receives a grant under the Successful, Safe, and Healthy Students program would have to establish policies 鈥渢hat prevent and prohibit conduct that is sufficiently severe, persistent, or pervasive to limit a student鈥檚 ability to participate in or benefit from a program or activity of a public school or educational agency, or to create a hostile or abusive educational environment at a program or activity of a public school or educational agency, including acts of verbal, nonverbal, or physical aggression, intimidation, or hostility.鈥�
That language wasn鈥檛 challenged during several days of vigorous debate.
