March 20, 2013 at 12:00 pm EDT | by WBadmin
Drawbacks to anti-bullying strategy


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.

Adrian Alvarez is a D.C.-based attorney with Public Justice, P.C.

  • Very interesting, though I see a few problems here. One, the statement that "the best way to protect LGBT students may be to try to protect everyone" is a little misleading, though I'm sure you didn't mean it that way. Measures championed by LGBT groups *do* protect everyone: For example, state-level provisions favored by these groups almost invariably address bullying against *any* student based on actual or perceived sexual orientation and gender identity. Absolutely everybody has an "actual or perceived" sexual orientation and gender identity, and absolutely anybody can face anti-LGBT animus, so it's inaccurate to suggest that LGBT groups are pushing for laws that would only protect LGBT youth.
    In any event, state-level provisions are not necessarily limited to bullying based on particular traits like sexual orientation. LGBT groups regularly champion anti-bullying laws that define bullying broadly to include mistreatment *regardless of the reasons* (i.e. not just anti-LGBT bullying); but these laws also make clear that the bullying prohibited by law *includes* bullying based on sexual orientation. For example, NY's anti-bullying law contains a broad definition of harassment and then says that prohibited harassment "includes but is not limited" to certain conduct based on race, sex, sexual orientation, etc. In this way, the law protects against *all* types of harassment but also recognizes and calls attention to the often-overlooked problem of anti-LGBT harassment. Finally, while it may be true that "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," this is largely because anti-bullying laws and proposals (with some exceptions, like SNDA), often don't provide individuals with a right to sue at all. So perhaps your article mis-diagnoses the problem in part? In other words, if you favor a right to sue for bullying, then you need to convince LGBT groups to favor state laws that allow for lawsuits. To focus instead on whether or not the laws protect all students is to focus on a problem that doesn't really exist; as explained above, the laws generally *do* cover all students. Of course, I recognize that the federal laws (and federal proposals like SNDA) present a different story/issue on a couple of these points, and I guess your point was to focus mostly/only on those federal laws. But most of the movement on this stuff occurs at the state level, I believe.

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