commentary
Don’t give ’em support unless they protect your rights
Published Thursday, 12-Oct-2006 in issue 981
Beyond the Briefs
by Robert DeKoven
I’m disappointed that the governor didn’t sign the Safe Place to Learn Act, a bill that would have specifically directed the superintendent of public instruction to investigate complaints of harassment of students. Another bill, which was also pushed by Jewish groups, would have required schools to include lessons on the Holocaust in the curriculum. And because Hitler hated gays as much as Jews, the curriculum would include this, too.
Christian conservatives basically held a gun to the governor and told him if he signed those bills, they would conduct an all-out effort to tell their flock to leave their ballots blank. “Just veto the fag bills; we don’t care about universal health care for the poor. We’re not those kinds of Christians.”
I don’t think it would have worked here. The polling numbers show this governor with lots of support, especially from Democrats.
Ideally, as some predict, the governor may win with enough support from Democrats that he may find in the future he doesn’t need the votes of Christian conservatives. Thank God!
The experience with these bills (and others) reminded me of the real problem that we have: enforcement of existing laws.
Several of the laws we pushed this session are already law. It’s quite obvious that the state superintendent has a legal duty to investigate complaints of bias. And it’s obvious that the state of California cannot support anti-gay bias in any of its programs. In fact, some of our bills began with, “This bill is declarative of existing law.”
So why are these bills even necessary? Because some elected officials are cowards and refuse to carry out what the law requires.
We then have to rely upon the charity of lawyers like, locally, Paula Rosenstein and Bridget Wilson to spend their personal funds to take a school bashing case to trial. Ironically, they act as private attorneys general.
There have been virtually dozens of anti-gay bias cases litigated by private lawyers throughout California. But the vast majority of such cases go unreported, let alone litigated. GLBT youth need a state agency for help.
The State Department of Education is run by Jack O’Connell. About three years ago, he tried to enforce the anti-bias provisions of state law. A school board district in Orange County refused to amend its anti-bias policy to protect students from gender identity discrimination.
“[T]he governor may win with enough support from Democrats that he may find in the future he doesn’t need the votes of Christian conservatives. Thank God!”
O’Connell did what he is legally empowered to do: He ordered the district to amend the policy or he would refuse to award the district state funds.
The right wing made this a battle, which ended with a recall of the school board members. And O’Connell ended up agreeing to some compromise language.
But many of us suspect O’Connell learned a lesson and didn’t want to tangle with the right wing, or lose his bid for re-election. He needed political cover so he could blame the Legislature and the governor if he tried to enforce anti-bias laws against a school district.
But existing law does not just empower the state superintendent to act, it requires him to act.
These office holders are all Democrats, save one (Gov. Arnold Schwarzenegger). Our Democratic clubs need to demand that these office holders establish GLBT advisory committees and that they carry out the law.
Without such a push, they won’t, and here’s why. Look at your ballot. Because of term limits, it’s a game of musical chairs. The attorney general is running for treasurer, the treasurer is running for governor, the lieutenant governor is running for controller and the insurance commissioner is running for lieutenant governor.
And while in office, no one really wants to do anything for the GLBT community, apparently, because they seem to think it can cause problems for the next election.
Elected officials aren’t required by law to run for re-election; they choose to do so. But when GLBT students are getting beaten at school, and the schools show “deliberate indifference,” California law requires the attorney general to investigate those schools failing to protect civil rights. And because hate crimes against kids are also child abuse, the attorney general needs to prosecute teachers who fail in their mandatory duty to report these incidents.
Instead, the current attorney general is busy defending his office’s obligation to deny us the equal protection of the laws of California (via his defense of the same-sex marriage litigation).
And instead, state Senator Christine Kehoe and the Legislative LGBT Caucus have to consider devoting more work to pass bills that are essentially orders from the Legislature to these executive officials to do what the laws plainly require.
Robert DeKoven is a professor at California Western School of Law.
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