A Senate committee markup this week could present an opportunity to include LGBT anti-bullying measures as part of larger education reform legislation — although whether the panel will act remains unclear.
Starting Wednesday, the Senate Health, Education, Labor & Pensions Committee will consider amendments and vote on legislation to reauthorize the Elementary & Secondary Education Act, an extensive law that helps fund primary and secondary schools throughout the country.
President Obama has identified reauthorization of the law, which was last updated in 2001 during the Bush administration with the No Child Left Behind Act, as among his priorities for this year. At the onset of the 112th Congress, passage of education reform — and possibly LGBT-inclusive legislation — was seen as an area where where a Republican-controlled House and a Democratic-controlled Senate could come to an agreement to take action.
LGBT advocates had been pushing for the inclusion of two-LGBT bills as part of education reform — the Student Non-Discriminination Act and the Safe Schools Improvement Act.
The Student Non-Discrimination Act, or SNDA, is sponsored by Sen. Al Franken (D-Minn.) in the Senate. It establishes sexual orientation and gender identity in schools as protected classes. The bill prohibits school activities receiving federal financial assistance from discriminating against LGBT students. Discrimination also includes harassment of a student.
The Safe Schools Improvement Act, or SSIA, is sponsored by Sen. Bob Casey (D-Pa.) in the Senate. It would require schools receiving federal funds to adopt codes of conduct that prohibit bullying and harassment, including on the basis of sexual orientation and gender identity. The legislation would also require states to report data on bullying and harassment to the Department of Education.
Whether Franken or Casey will offer amendments based on these bills during the Senate HELP committee’s markup remains to be seen. The offices of both senators were non-committal on plans to offer them during the markup process.
Alexandra Fetissoff, a Franken spokesperson, said the senator is committed to SNDA but has yet to make a decision on the best opportunity to introduce the legislation before the Senate.
“He’s currently weighing his options — offering the bill to the committee or as an amendment when ESEA comes to the floor,” Fetissoff said. “He’s hopeful that SNDA will pass as he firmly believes it’s the right thing to do and he believes his colleagues will come to realize that.”
Should Franken offer the amendment during the committee markup process, he should have no problem getting the measure through the committee. All 12 Democrats on the panel are co-sponsors of the bill, which should give it majority support for passage. The legislation has no Republican co-sponsors.
April Mellody, a Casey spokesperson, similarly said plans aren’t yet settled on whether or not her boss will introduce SSIA as an amendment during the markup. She said Casey is “currently working with the other members regarding the amendment process.”
But Mellody said language in the chairman’s mark for the base bill already addresses bullying. Under a provision called Successful, Safe and Healthy Schools, schools receiving grants under the program must have student conduct policies that prohibit bullying and harassment, a key principle of SSIA.
Mellody said Casey is “pleased” with the provision, but would like to see language with enumerated categories that is explicitly LGBT-inclusive.
“Sen. Casey believes those policies should also include specific characteristics, including sexual orientation and gender identity, among others, as protected categories,” Mellody said.
Should Casey decide to offer SSIA as an amendment during committee, he could have more difficulty than Franken would if he offered up SNDA. Of the 12 Democrats on the panel, 10 are co-sponsors. Sens. Michael Bennett (D-Colo.) and Jeff Bingaman (D-N.M.) aren’t co-sponsors of the bill.
On the Republican side, Sen. Mark Kirk (R-Ill.) is an original co-sponsor of the bill, bringing the total number of co-sponsors to 11. That could be short of the 12 votes needed for passage if the bill comes up during committee.
However, given that Bingaman and Bennett are co-sponsors for SNDA and voted in favor of “Don’t Ask, Don’t Tell” repeal last year, their support for SSIA is likely should the measure come up in committee.
Michael Cole-Schwartz, spokesperson for the Human Rights Campaign, said plans remain “up in the air” over whether SNDA or SSIA will come up during the committee markup.
“We don’t know how this is going to turn out,” Cole-Schwartz said. “Certainly, we’ve been advocating on the Hill very strenuously for both of these provisions into the reauthorization, working with our allies in Sen. Casey’s office and Sen. Franken’s office.”
Cole-Schwartz said “it’s poignant” the markup would take place at the same time that the bullying of gay students who committed suicide has been in the news and around the same time as Spirit Day. On Thursday, millions of Americans are expected to wear purple as a sign of support for LGBT youth and to speak out against bullying.
“I think the Senate has a great opportunity to take advantage of this moment that we’re in and really do something to improve the lives of these young people,” Cole-Schwartz said.
If Franken and Casey were to move forward with these amendments, they would be doing so without explicit backing from the Obama administration. President Obama has yet to endorse either SNDA or SSIA.
Shin Inouye, a White House spokesperson, said the administration continues to support the goals of the bills, but stopped short of offering explicit support for them.
“We support the goals of both of these efforts,” Inouye said. “As the Elementary and Secondary Education Act is being considered, we look forward to working with Congress to ensure that all students are safe and healthy and can learn in environments free from discrimination, bullying and harassment.”
UPDATE: An LGBT rights advocate, who spoke on condition of anonymity, said Senate HELP Committee Chair Tom Harkin (D-Iowa) is the “obstacle” in including SNDA and SSIA in the education reform markup.
The advocate said Harkin isn’t opposed to the bills, but wants “a clean markup process” so education reform “can sail through” without opposition. Harkin co-sponsors both SSIA and SNDA.
“They want clean markup processes so that their bills can go through without opposition,” the advocate said. “So there’s kind of a dance and negotiation going on.”
The anonymous advocate said Franken and Casey are “really trying to negotiate their way” to include their bills in the committee markup, but no decision has yet made on whether they’ll offer those amendments.
ADDITIONAL UPDATE: The committee markup process has been halted after objections from Republican senators. In committee, Harkin said he expects the panel to reconvene either in the evening on Wednesday or early Thursday.
A Harkin spokesperson, also speaking anonymously, responded to the assertion that the senator is an “obstacle” in including SSIA and SNDA in the committee markup by saying Harkin has “long supported efforts to ensure that all children feel safe and secure in our schools.”
“He believes that no student should be forced to endure harassment, discrimination, violence, bullying or intimidation for any reason, including their sexual orientation or gender identity,” the spokesperson said. “Chairman Harkin is an original co-sponsor of the Student Non-Discrimination Act and is committed to working with Sen. Franken, author of SNDA, and Sen. Casey, author of the Safe Schools Improvement Act, to ensure all students are given the opportunity to succeed free from harassment or discrimination.”