Testimony of Robert Salem, Esq.

Before Ohio Senate Education Committee

Regarding H.B. 276

December 12, 2006

As a Clinical Professor of Law I have devoted much of my energy to children’s issues in general and safe schools in particular.  I have represented children in our schools who have been the victims of bullying and other forms of discrimination, and I have heard directly from many kids about their experiences trying to handle the usual demands of school while trying to cope with the devastating effects of bullying.  So I am gratified and excited about your efforts to address this issue, and I thank you for allowing me to share my thoughts with you.

First, I commend the drafters of this bill for writing a comprehensive draft that incorporates many elements that are missing from the anti-bullying laws of other states.  These elements include reporting, procedural and notice requirements, and strategies for protecting victims from additional bullying.

However, there are serious problems with this draft that should be remedied so that the new law really does protect all children from harassment and bullying.  The first problem is that the definition of harassment, intimidation and bullying sets a high standard of proof for victims.  This bill requires that the victim prove mental or physical harm, and that the bullying is “sufficiently severe, persistent, or pervasive that it creates an intimidating, threatening, or abusive educational environment.”  These terms are borrowed from federal sexual harassment law under Title IX of the Education Amendment Acts of 1972.  Unfortunately, victims of harassment under Title IX are often denied recovery because courts have interpreted the words “sufficiently severe and persistent” to mean “very” or “extremely” severe and persistent.  Most bullying victims probably suffer humiliation, embarrassment, and a reduction in self esteem.  Their grades drop and they may avoid school.  Some suffer greater harm.  I fear that the high standard set in this bill will be of little help to the majority of bullied kids in our state.  I hope that this committee reflects on the real purpose of this bill and revisits the definition of bullying.  A better definition that encompasses all bullying would simply get rid of the severe, persistent and pervasive language.  A good example of a definition that works is included in the Oregon anti-bullying law.  That legislation defines bullying as “any act that substantially interferes with a student’s educational benefits, opportunities or performance, that takes place on or immediately adjacent to school grounds, at any school-sponsored activity, on school-provided transportation or at any official school bus stop, and that has the effect of : 1) physically harming a student or damaging a student’s property; 2) knowingly placing a student in reasonable fear of physical harm to the student or damage to the student’s property; or 3) creating a hostile educational environment.”

The second major problem with this bill is that there are no characteristics enumerated that would give notice to school districts that all kids are protected.  Enumeration would help protect the most likely victims of bullying while prohibiting all bullying against any child for any reason.  A well-drafted bill with enumerated categories will not exclude certain groups from protection.  A good bill will explicitly state that all bullying for any reason is prohibited while calling attention to groups that are disproportionately affected by bullying. Experts in this area will tell you that the majority of bullying occurs because of the victim’s appearance, actual or perceived sexual orientation or gender identity.  Yet these kids are most likely to be excluded from enforcement of anti-bullying policies enacted under this bill.  House Bill 276 allows policies around the state to be applied subjectively based on the prejudices or ignorance of those in charge.  This subjective application was revealed in a 2005 National School Climate Survey conducted by GLSEN (Gay, Lesbian and Straight Education Network) with the help of Harris Interactive.  One key finding from that report was that states with generic anti-bullying laws and states with no law at all had equally high rates of verbal harassment.  States with inclusive policies that specifically enumerate categories including sexual orientation and gender identity had significantly lower rates of verbal harassment.  This is because enumeration provides clarity and sufficient notice to the public about the purpose and scope of the law.  This is a view endorsed by the U.S. Justice Department.  The Department’s Office of Juvenile Justice and Delinquency Prevention reported that bullying can be reduced by up to 50% if a school-wide commitment to end bullying is adopted and if the approach involves the formation of clear rules and strong social norms against bullying.  Enumeration offers such clarity.  Also, the reduction of harassment and bullying would undoubtedly save school districts the expense of defending lawsuits.  Every federal lawsuit to date brought against school districts for anti-gay harassment has resulted in a verdict or a favorable settlement for the victim.  

Enumeration of protected categories of people is a standard part of practically all our civil rights laws around the country because it works.  As our own United States Supreme Court stated in the landmark case of Romer vs. Evans, 517 U.S. 620 (1996),  “enumeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply.”  The Court, like most experts familiar with civil rights law, recognized that without enumeration the most unpopular groups go without protection.  We see evidence of this throughout the history of our country.  For instance, despite clear language in the U.S. Constitution guaranteeing equal rights to all people, we had to amend the Constitution three times before women and African Americans were granted the fundamental right to vote.

We all want to protect our children and guarantee their right to learn unimpeded by fear and violence.  The best way to ensure their protection and facilitate their learning is to pass a good bill that addresses all bullying and protects all kids.  We can do this if we revise House Bill 276 to include enumerated categories, including a student’s appearance and actual or perceived sexual orientation and gender identity, and a better definition of bullying that reflects the reality in our schools.  Thank you very much for your attention.