Originally published on Advocate.com September 13 2011 8:00 PM ET
Student anti-LGBT bullying cases “are probably the largest growth area” on the U.S. Justice Department’s Civil Rights Division docket, Assistant Attorney General Thomas E. Perez told lawmakers Tuesday.
Testifying before the Senate Judiciary Committee in a hearing chaired by Sen. Chris Coons of Delaware, Perez, who leads the DOJ's Civil Rights Division, briefed members on hate-crimes prosecution and investigations since the 2009 passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. Perez also spoke on other key areas of the division’s work, including law enforcement misconduct, fair housing, and voting rights — as well as the disconcerting rise in reports of antigay bullying across the country.
The Justice Department’s multiple investigations into school bullying — on the basis of sexual orientation, race, and other factors — led Sen. Al Franken of Minnesota, Senate sponsor of the Student Non-Discrimination Act, to ask Perez whether current hate-crimes legal protections go far enough to safeguard students who are LGBT (or perceived to be LGBT).
Federal law does not prohibit discrimination on the basis of sexual orientation and gender identity in areas such as employment and education. However, the DOJ, under both the Obama and Clinton administrations, has interpreted civil rights law to cover sex stereotyping and gender nonconformity, which apply in many cases involving LGBT individuals.
“Sadly, harassment of students for gender or sexual identity is frequent and disturbing, and while the Matthew Shepard Hate Crimes Act provides some protection against sexual orientation-based violence, it’s clearly not doing enough for LGBT students,” Franken said in the hearing.
One current, highly publicized case involves the Anoka-Hennepin School District in Franken’s home state — and GOP presidential candidate Rep. Michele Bachmann’s congressional district. In July the National Center for Lesbian Rights and the Southern Poverty Law Center filed suit against the district on behalf of several students who reported harassment and violence in an anti-LGBT atmosphere, one perpetuated by a “gag policy” preventing educators from discussing LGBT issues, they claim. Following the suicides of several students in the district who reportedly were subjected to bullying in recent months, Minnesota state public health officials designated the region a “suicide contagion area.”
Franken, who also sits on the Committee on Health, Education, Labor, and Pensions, has advocated that his bill be included in the reauthorization of the No Child Left Behind Act, though congressional wrangling over the debt ceiling and economic recovery have stalled other bills on multiple fronts.
“This is an emerging growth area, I regret to say,” Perez said of bullying cases. “That’s why the president had a daylong summit on bullying [in May], that’s why we have taken such an aggressive role."
To Franken, Perez said, “I very much support the goals behind your efforts in introducing the Student Non-Discrimination Act. Kids are dying, kids are being brutally assaulted, kids are scared.”
Perez reported that four federal cases have been filed and seven defendants convicted under the Matthew Shepard hate-crimes law. The cases detailed in Perez’s testimony were crimes motivated by religious or racial bias; none involves violence or discrimination on the basis of sexual orientation or gender identity.
“Even in the aftermath of the passage of the 2009 Act, prosecution is still largely a matter left to the states,” said Jack Levin, a sociology professor and hate-crimes expert at Northeastern University. “There continue to be relatively few prosecutions of hate crimes not only against gays and lesbians but also against other vulnerable groups as well. Part of the reason involves the lack of experience of prosecuting attorneys; another has to do with victims and witnesses who refuse to give testimony in court.”
The DOJ has investigated or continues to investigate several bullying cases nationwide, including Anoka-Hennepin (a Justice Department spokeswoman declined comment on the pending investigation in Minnesota). In July the DOJ and the Department of Education reached a settlement agreement with the Tehachapi Unified School District in Tehachapi, Calif., following the suicide of 13-year-old Seth Walsh, who suffered several harassment on the basis of gender nonconformity, according to the federal investigation.
“All students have the right to go to school without fearing harassment on the basis of their sex, including because they do not conform to gender stereotypes. Seth’s story and others like it sadly demonstrate that a school’s failure to address and prevent harassment can have tragic consequences,” Perez said in July of the settlement.
The hate-crimes prevention act gives DOJ the ability to administer grants for local law enforcement programs, as well as the authority to investigate and prosecute violent crimes.
On the antibullying front, the Department of Education will host its second annual summit next week on the issue in Washington, D.C.