commentary
Democratic Congress should push laws a majority of Americans support
Published Thursday, 16-Nov-2006 in issue 986
Beyond the Briefs
by Robert DeKoven
As the Democrats regain control of Congress, there are several laws that the Democratic majority must push for, lest we get a Republican Congress in two years.
For the last 14 years, virtually every major bill we’ve pushed has been thwarted by the right in Congress. It’s safe to say that the majority of Americans – especially witnessing what has occurred in the last 14 years – support most of these measures. They would not vote out a Democrat for merely supporting these common-sense moves.
For starters, it’s time that federal law helps GLBT youth. The federal law barring discrimination based upon gender, often referred to as Title IX, does not explicitly cover sexual orientation. Thankfully, lower federal courts have held that it does. The U.S. Supreme Court has not said otherwise.
The Department of Education under the Clinton years took the position that federal law protected gay and lesbian youth from bias and harassment. It issued advisories to 15,000 school districts alerting them about the law.
In the last six years, there have been dozens of cases filed by private attorneys on behalf of gay and lesbian students under federal law, and the students have prevailed in virtually all these cases. They’ve shown that school officials acted with “deliberate indifference” to their complaints of severe and pervasive abuse.
However, the federal Department of Education (Office of Civil Rights) will not accept, investigate or try to remedy any complaints of abuse based upon sexual orientation. This is because the Bush administration does not consider federal law to prevent bias against GLBT youth. Perhaps we should all be grateful that it hasn’t sought to amend the statute to prohibit such actions.
The irony is that the Bush White House held a conference a few weeks ago on how to remedy school violence. Yes, you guessed it. Prayer, abstinence and curtailing teen pregnancies and abortion provide the answers. I’m just surprised the Rev. Ted Haggard and Mark Foley weren’t present.
One answer to school violence and teen suicide is giving kids who feel harassed and bullied at school a federal office of support. That’s what the Department of Education’s Office of Civil Rights is supposed to do.
I don’t think the president wants to see GLBT kids beaten up at school. And V.P. Cheney doesn’t want his grandkids beat up because their mother is a lesbian. So we’d hope the president would support this.
Congress needs to include in federal law that students are protected from discrimination based upon sexual orientation. To remedy school hate crimes, Congress should require the Department of Education (its Office of Civil Rights) to enforce the law, and this means disseminating to primary and secondary students a copy of the federal law that schools must publish in student handbooks.
The Office of Civil Rights (OCR) should also create a Web site, a hotline, etc., so that abused students or their parents can report abuse to the OCR. The OCR should investigate complaints and issue findings. Schools that have showed deliberate indifference should show cause as to why their federal funds shouldn’t be cut off.
No one wants to see any public school lose federal funding, and none have under these federal laws. We know schools would struggle to survive. But if large damage awards aren’t going to sway schools to take anti-gay abuse seriously, then perhaps sanctions from a federal agency are necessary.
This is the law with regard to gender and race bias. When school officials discover that there won’t be any funds to pay them, or at least to support the football team, they tend to see gender and race bias in a whole different light. We need this on the federal level.
Our second priority has to be ending the military’s “Don’t Ask, Don’t Tell” policy banning gay, lesbian and bisexual servicemembers from serving openly. If there is any good that has come out of the Iraq war, it’s that the military reduced discharges under the policy because it couldn’t spare the personnel.
And no one is blaming the presence of gays and lesbians in the military as cause of the failures in Iraq. If Congress simply deleted “Don’t Ask, Don’t Tell” from federal law, no one would know the difference.
While the Republican House did approve of adding sexual orientation to federal hate crimes, the Senate has stalled the measure. It’s time to move that measure onto the president’s desk.
While California leads the nation in protecting gays and lesbians from bias on the job, there is nothing explicitly in federal law. It’s time to adopt a federal law (known as the Employment Non-Discrimination Act), which would make employment nondiscrimination a right for all persons, regardless of their sexual orientation.
Hate crimes and nondiscrimination should stay at the top of the agenda. We must also make a push for protecting school kids from harassment, abuse and bias within public and private schools, and in universities. Robert DeKoven is a professor at California Western School of Law.
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