Wednesday, March 23, 2011

Washington Invents an Anti-Bullying Law

By Hans Bader (a former Education Department lawyer)

There’s no federal law against bullying or homophobia. So the Department of Education recently decided to invent one. On October 26, it sent a “Dear Colleague” letter to the nation’s school districts arguing that many forms of homophobia and bullying violate federal laws against sexual harassment and discrimination. But those laws only ban discrimination based on sex or race – not sexual orientation, or bullying in general.

The letter from the Education Department’s Office for Civil Rights twisted those laws, interpreting them so broadly as to cover not only bullying, but also a vast range of constitutionally protected speech, as well as conduct that the Supreme Court has held does not constitute harassment. In so doing, it menaced academic freedom and student privacy rights, and thumbed its nose at the federal courts.

The letter successfully left the false impression that federal law already bans bullying and anti-gay harassment. For example, a sympathetic news story reported that “the Department of Education issued guidance to all school officials in October 2010, reminding them that federal law requires schools to take action against bullying—including . . . sexual harassment of LGBT students.”

The letter was part of a high-profile Obama Administration campaign against bullying, that recently culminated in “a high-visibility conference on bullying prevention March 10, with the president and first lady” and the introduction by Administration allies of “several LGBT-inclusive bills designed to address bullying of students.”

But in reality, there is no federal ban on bullying, and no federal statute prohibiting sexual orientation discrimination. Bills banning anti-gay discrimination, such as the Employment Non-Discrimination Act, have yet to pass Congress. Existing sexual harassment laws generally do not cover harassment aimed at gays based on their sexual orientation, as opposed to their gender – even if such harassment is sexual in nature.

As the Supreme Court emphasized in its 1998 Oncale decision, “workplace harassment” is not illegal sexual harassment “merely because the words used have sexual content”; instead, victims “must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination ‘because of’” a victim’s “sex,” such that “members of one sex are” treated worse than “the other sex.” Thus, federal courts have usually dismissed sexual harassment lawsuits brought by gay employees over bullying and foul language, in cases like Higgins v. New Balance (1999).

Harassment is legally defined even more narrowly in schools than workplaces. In the workplace, harassment need only be severe or pervasive enough to create a hostile environment in order to be illegal. A single, severe physical act can occasionally be enough for a lawsuit.

But in the school context, harassment is defined more narrowly by the Supreme Court’s 1999 Davis decision: it must be “severe” and “pervasive”: to be illegal, sexual harassment must be "so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school since “schools are unlike the adult workplace” and “children may regularly interact in a manner that would be unacceptable among adults.” Moreover, the requirement of both severity and pervasiveness means that a lawsuit cannot be based solely on a “single instance” of “severe” peer harassment.

The Education Department’s letter, from Assistant Secretary for Civil Rights Russlynn Ali, flouts the Supreme Court’s harassment definition, claiming that “Harassment does not have to . . . involve repeated incidents” to be actionable, but rather need only be “severe, pervasive, or persistent” enough to detract from a student’s educational benefits or activities. The letter goes out of its way to emphasize that harassment includes speech, such as “graphic and written statements” and on the “Internet.”

The letter falsely implies that anti-gay harassment is generally discrimination based on sex. It cites as an example of illegal “gender-based harassment” a case in which “a gay high school student was called names (including anti-gay slurs and sexual comments) both to his face and on social networking sites.” This is exactly what most federal appeals courts have said does not constitute gender-based harassment. It is not clear whether this case is merely a hypothetical example, or – more disturbingly -- a finding by the Education Department’s Office for Civil Rights (OCR) in an actual case. The letter says that “each of these hypothetical examples contains elements taken from actual cases.”

If it actually found a school district guilty of harassment over this, then the Education Department has flagrantly disregarded court rulings, not just about what harassment is, but about how officials are supposed to respond to harassment.

Much more HERE

I Found My Thrill Blowing Up McGill

Mike Adams

The irony is never ending in higher education these days. College administrators are so steeped in the ideology of political correctness that they fail to miss an opportunity to help make their opponents’ argument for them. Such was the case after a Jihadist recently Tweeted death threats at a campus screening of Indoctrinate-U.

Students at McGill University in Montreal are outraged at the politically correct response of Morton J. Mendelson - the Deputy Provost of Student Life & Learning at McGill. And they should be outraged by his cowardice.

For those who aren’t aware, Indoctrinate-U. is a documentary by my old friend Evan Coyne Maloney. The film exposes the liberal bias and politically correct nature of universities. During its showing, a Muslim student in the audience produced a series of violent messages on Twitter. Here are some examples:
“I should have brought an M16.”

“I’m watching a Zionist/Conservative propaganda film at a secret Zionist convention, in case anyone’s confused.”

“This experience has hardened me into a soldier for freedom and truth. These savages will not rule me. They will not win.”

“My blood is boiling. I want to shoot everyone in this room.”

Ok f---k it, I’m going to destroy the Jew-WASP consortium.”

(Note to Media: I have screen shots of all of these Tweets if anyone is interested).

In typical Muslim Jihadist fashion, Haaris Khan, the author of the Jihadist Tweets is retreating from his statements. He has since apologized and said that his Tweets were “taken out of context.” He says he owns no weapons and has never fired a gun. He also said his sister-in-law is Jewish. He stopped short of saying that when he needs a good doctor he always looks for one with a Jewish name.

Earlier in the year, Haaris Khan published a bizarre opinion piece condemning a newly founded student newspaper with conservative leanings called the Prince Arthur Herald. Quite naturally, he published the condemnation in the traditionally liberal leaning McGill Daily. In the piece, he makes it clear that he supported the paper when it was initially proposed. But, then, after reading a few issues he withdrew that support because the paper had proven to be “pro-Israel.”

In the piece, he lectures the conservative paper saying “Being provocative is one thing – being thuggish is another.” He goes on to say that journalists need to “stick to principles of fairness, justice, responsibility, and prudence.”

Obviously, Kahn is an imprudent and irresponsible thug incapable of judging his own behavior objectively. How about the university administration’s capacity for objectivity? What kind of judgment do they make of Haaris Kahn after his violent anti-Semitic campus outburst? Judge for yourself after reading the response of Deputy Provost Mendelson:
“Given the article in this week’s Tribune and other media reports about a McGill student’s posts to Twitter that contained disturbing and threatening messages, I want to reassure the McGill community that the University takes such incidents extremely seriously.

In all such cases, we report the incident to Montreal police, who investigate and determine whether further action is needed. In addition, the University quickly refers the matter to the appropriate disciplinary officer, who determines if a student needs to be excluded from campus in order to protect others and who can also pursue disciplinary action. In addition, we have a threat-assessment team that reviews such cases in a timely fashion.

We are aware that some who learned of the messages were very concerned about their safety, and understandably so. We have tried to reassure them. There have been suggestions that the University should have issued a broader alert to the community about the messages. But we must avoid causing needless panic or delivering ‘false alarms’ that could lead to complacency in the event of real threats in the future.

McGill took a number of actions in this case, many of them behind the scenes – not simply to satisfy the demands of Quebec’s privacy law, but because we want some of our responses to remain confidential to shield them from the eyes of those who could cause harm.

Please rest assured: If the tweeted messages were deemed to pose a real threat, we would have taken very different action.

What we have ended up dealing with is a downside of social media – the ability of an individual to disseminate inappropriate or threatening messages to a global audience with the click of a mouse or a send button. All members of our community should be responsible in using the Internet and social media. There can be serious consequences for irresponsible use.

For information on McGill’s procedures about how to deal with violent, threatening or worrisome student behavior, please visit here.

At the end of the investigation, Mendelson said this to the Canadian media, “We have come to the conclusion that the messages don’t constitute a threat to the community”. No doubt, this tepid and disingenuous response was motivated by a desire to protect Muslims as a group from “unfair” stereotyping. In other words, the university wished to advance the view that these remarks were motivated by individual, not group, pathology. Ironically, they do so by treating Kahn as a member of a protected group, rather than an individual.

The conservatives and libertarians who sponsored the showing of Indoctrinate U. could not have choreographed this better. In the end, they have shown – on film and in reality – that liberal bias and political correctness rule the day in the postmodern era of higher education.


Bungling British education bureaucrats

Education bosses shamed as recruitment advert for MATHS teachers shows equation... with the WRONG answer

A TV advert to recruit teachers was ridiculed today after a 15-year-old schoolboy spotted that a maths question has the wrong answer. Chris Coombs, 15, noticed the mistake in the 30-second government-funded advert, which is regularly shown on Channel 4 and ITV.

The clip shows a teacher writing '(g2)7 = g?' on a whiteboard and later 'solving' it with the answer 'g2 x g7'. But the correct answer for the algebraic equation is g14 - or g2 x g2 x g2 x g2 x g2 x g2 x g2.

Year 10 pupil Chris, who attends the John Cabot Academy in Bristol, criticised the advert and called for it to be amended as soon as possible. He said: 'I was disappointed to notice that the mathematical calculation is inaccurate. 'The workings the teacher is writing on the interactive whiteboard would not answer the question correctly. 'I believe this should be amended as the advertisement in question is attempting to recruit potential teachers.

The Training and Development Agency for Schools created the advert using a real teacher and class. Several questions, pupil's discussions, workings and answers were filmed and cut together to give an overall impression of a class.

But producers claimed the scene shown is of the teacher deliberately demonstrating an incorrect answer. She later went on to explain the correct workings and answer, but this was not shown in the short clip, they claim.

Simon Nutt, from the Training and Development Agency for Schools (TDA), which made the advert, said: 'Our TV adverts use highly-qualified teachers with their real-life classes. 'We make every effort to capture the spirit of the lesson in the final footage but there are inevitably some scenes that have to be cut down or cut together which may mean we cannot show the full details of a question, answer or comment.'

Chris, who lives in Bristol with his mother Sue, father David and sister Laura, said the advert caught his eye because of his interest in maths. He said: 'I want to pursue a career in mathematics in one way or another - but not as a maths teacher.'


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