School Bullying Council

Emotions have run high since the very first day of Brandon McInerney’s trial for murder. Perhaps that’s because the killing of his gay middle-school classmate Lawrence King was as emotionally jarring as it was appalling. When McInerney, then 14 years old, shot 15-year-old King twice in the back of the head in a school computer lab three years ago, the incident jolted the coastal city of Oxnard, California, thrust two unstable households into the spotlight, and made King a rallying point for the gay community across the nation. The shooting exposed a multitude of sensitive subjects all at once: issues regarding gays, transgender people, bullying, white supremacy, child abuse and school violence came to the surface.

And there were other kinds of baggage. Before proceedings had even begun, almost two months ago, the judge reportedly barred McInerney’s brother from watching the proceedings after he spoke to members of the jury. Since then, former classmates have broken down crying on the witness stand. McInerney’s mother and a teacher cried when the defense displayed a picture of King holding a homecoming dress and smiling, prompting the victim’s father to storm out of the courtroom in disgust. The defense has even tried to disqualify the judge, alleging he was biased in favor of the prosecution.
(See a viewpoint on the Lawrence King murder.)

In theory, the jury should only be concerned with the facts. But what happens when emotion becomes a fact, one that could benefit the defendant? The question at hand is whether McInerney, who is being tried as an adult, committed a hate crime as well as murder with premeditation, as the prosecution is arguing, or whether he committed manslaughter in the heat of extreme emotion — a crime of passion — as the defense argues. A first-degree murder conviction would get McInerney 53 years to life in prison, while manslaughter would reduce the sentence to as few as 18 years, according to the defense attorney. (No one is debating whether McInerney shot King; an entire classroom saw him do it.)

Prosecutor Maeve Fox is arguing that there was clear premeditation. According to testimony, after King made sexual advances, McInerney told another student he was going to bring a gun to school, went home, spent the night, brought a gun the next morning, sat behind King in class, and then pulled the trigger. In her bid to prove a hate crime, Fox has shown drawings of Nazi images found in McInerney’s notebooks and has brought in a white supremacy expert to argue that the defendant was influenced by an ideology of hatred that includes despising homosexuals. (Fox, King’s adoptive father Greg, and the King family attorney Steve Pell all declined interview requests from TIME.)

On the other side, defense attorney Scott Wippert is pulling out all the stops to convince the jury that it was manslaughter. First, he argues that McInerney’s upbringing in an abusive home played a role in his killing of King. Second, he’s blaming school officials for not doing more to prevent King from wearing feminine attire and taunting other boys, arguing that such behavior pushed McInerney to an emotional breaking point. Third, he says the defendant’s extreme emotional state made him unaware of his actions. Finally, Wippert says King’s advances amounted to sexual harassment and were partly responsible for the shooting. Witnesses have said King came to school wearing women’s accessories like make-up and high-heeled boots and made flirtatious comments to McInerney such as “Love you baby!”
(See the top 10 trials that shook the world.)

For the jury, it may come down to a question of whether people are fully responsible for their actions. It’s a hard sell to argue that the behavior of other people can actually cause someone to kill. But Wippert is trying. “Is there responsibility that goes further than Brandon? Absolutely,” he said in an interview with TIME. Prosecutor Maeve Fox is having none of it. “This entire defense is built on a bias against the victim, and this hope that people will buy into the fact that the way he was and they way he dressed was so provoking that a reasonable person would have reacted the way the defendant did,” Fox said in court. “It’s tragic and nauseating at the same time.”

Gay rights advocates and some experts say Wippert is using what’s known as “gay panic defense,” where the defense argues that a gay person’s sexual advances are so frightening that they lead the perpetrator to commit violence. “It is blaming the victim,” says Courtney Joslin, a law professor at the University of California, Davis. UCLA law and education professor Stuart Biegel adds, “These unseemly efforts to discredit Lawrence King, who was brutally mistreated and then killed, should be rejected by any jury.” Biegel, who has written about the case, also says that King’s behavior didn’t amount to sexual harassment, and that he was merely responding to bullying by McInerney and other kids.

According to media reports of classmates’ testimonies, boys at the middle school, including McInerney, would make fun of and insult King with derogatory slurs because he was gay and wore women’s accessories. At lunchtime, boys eating at a table would scatter if King asked to sit with them, one friend said. Fox has said King was bullied by other boys for years and only had girls as friends. He would then flirt with the boys in order to get even because he knew it bothered them, the classmates said.

Still, the defense’s approach could prove successful because similar arguments have worked in some other cases, Joslin says. In 2004, three men accused of killing a transgender person in California got a mistrial after their attorneys invoked a panic defense. After that, the state then passed the Justice for Victims Act, which was sponsored by gay-rights group Equality California, in a bid to dampen the use of such tactics. Fox has said she will invoke that law and instruct jury members not to let bias against King’s sexual identity influence their decision. The defense attorney, for his part, denies that he is using gay panic. “The defense is that he was being targeted and he was being sexually harassed by this other boy, who just happened to be gay,” Wippert says.
(See a visual history of the gay rights movement.)

Wippert’s strategy seems to be gaining traction — at least in local media and op-ed pages. The headline of a recent Los Angeles Times story said the school’s decision to allow King’s behavior had come “under scrutiny,” while an opinion piece and readers’ comments in the local Ventura County paper, where Oxnard is located, said school officials were at fault for allowing King to dress as he did. One Ventura reader wrote in to say that McInerney shouldn’t be convicted of a hate crime. An opinion piece in the same paper said McInerney was as much as a victim as King because his father was a drug addict and — as witnesses have corroborated — was physically and verbally abusive toward his own son.

Will the jurors buy the defense arguments? A jury of one’s peers can be just as susceptible to emotional factors as anyone, says Brian Levin, a civil rights attorney and criminal law professor. “It can pull the jury to interpret the facts in the most sympathetic way to a defendant,” says Levin, who is director of hate and extremism studies at California State University, San Bernardino. “If that’s done, manslaughter is a really big split-the-difference verdict.” It could help McInerney get less time in prison. Closing arguments are scheduled for Thursday, Aug. 25 and the jury gets the case immediately.

See photos of New Yorkers celebrating the legalization of gay marriage.

See Michael Sharkey’s photos on gay teenagers in America.

http://www.time.com/time/nation/article/0,8599,2090287,00.html

Mother Jones published a story Monday detailing the disturbing recent history of anti-gay bullying in a school system in the heart of Michele Bachmann’s Minnesota congressional district. In just the past two years, there have been nine suicides in the Anoka-Hennepin school district, and a number of the victims were gay or had been subjected to homophobic bullying.

According to local teachers, counselors and LGBT activists, conservative groups like the Minnesota Family Council — closely allied with Bachmann — have created a “vitriolic climate” in the wake of these tragedies, arguing that anti-bullying initiatives are a cover for “advancing the homosexual agenda” in schools. Although recently quiet on the issue, in 2006 Bachmann herself opposed anti-bullying legislation. Speaking to state lawmakers, she suggested anti-bullying efforts could lead to “expecting boys to be girls.” (Andrew Sullivan dug up an audio recording of this remark.)

Professor Stuart Biegel of UCLA School of Law, who wrote “The Right to be Out,” which examines the pervasiveness of anti-gay prejudice in American schools, told Salon that he is “very familiar with what’s happening in the [Anoka-Hennepin] district” and the problem of bullying there. He noted that the Justice Department and the Department of Education’s Office of Civil Rights recently launched a federal investigation into allegations of harassment and bullying in the specific school district — where it is official policy to be “neutral” regarding “sexual orientation.” The Southern Poverty Law Center and the National Center for Lesbian Rights have called the policy a dangerous “gag rule” and have filed a federal suit against the district.

The Minnesota area — owing to shocking suicide statistics and, more recently, to Bachmann’s profile — has gotten a reasonable amount of attention over homophobic bullying in schools. However, Biegel stressed that the problem is nationwide, with the same narrative playing out even in some of the country’s most gay-friendly areas like San Francisco.

“According to a study released last year by the Gay, Lesbian, and Straight Education Network (and highlighted by The Advocate), 85 percent of LGBT students surveyed nationally said they’ve been bullied at school,” he said. “This is not a new dynamic and not limited to what’s in Minnesota. When I was doing research for ‘The Right to Be Out,’ I came across evidence that there’s been at least 10 years of criticism of anti-bullying measures as subterfuge for gay indoctrination.”

Biegel said that singling out particular areas of the country as havens for anti-gay bullying is tricky, but that “if people are generalizing, school districts in rural areas can tend to be more problematic. In certain areas, so-called family-friendly organizations [like the MFC] have greater sway.”

The teen suicide epidemic in Anoka-Hennepin and its links to anti-gay bullying (and policies which foster it) deserves media attention. And it is important to shine a light on Bachmann’s local allies and her work as a state legislator. When it comes to homophobia in schools, however, Biegel’s point is that, although some districts will garner more attention than others, the problem is truly pervasive.

Richard Posner (Photo credit: University of Chicago Law School)

April 15 marks the 15th annual Day of Silence, a national event organized by the Gay, Lesbian, and Straight Education Network (GLSEN) to bring attention to anti-LGBT name-calling, bullying, and harassment in schools. But a recent federal court decision—in a case stemming from a conservative response to the Day of Silence—has upheld the right of students to express certain anti-gay sentiments.

A leading expert on LGBT youth and the law says the case and others like it show the courts are struggling to define just where the expression of hostile views becomes harassment. And so far, even when they have allowed anti-gay speech, the courts have shown some sympathy to the needs of gay students to be protected against harassment.

In a decision March 1 in Nuxoll v. Indian Prairie School District, a three-judge panel of the 7th U.S. Circuit Court of Appeals upheld a lower court ruling that students have a First Amendment right to wear shirts stating “Be Happy, Not Gay.” The school, the court said, had not demonstrated that wearing the shirts would cause “substantial disruption”—a metric the U.S. Supreme Court has used to evaluate permissible speech in schools.

Unlike more overtly confrontational slogans, such as “Homosexuals go to Hell,” wrote Judge Richard Posner for the panel, “Be Happy, Not Gay” is “only tepidly negative.”

“A school that permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality,” Posner said. “People in our society do not have a legal right to prevent criticism of their beliefs or even their way of life.

The Nuxoll case began in 2006, when Heidi Zamecnik, a student at a public high school in Illinois, wore a t-shirt with “Be Happy, Not Gay” on the “Day of Truth,” an event developed by the Alliance Defense Fund (ADF), a conservative Christian legal organization. ADF sees a “Day of Truth” as a conservative response to GLSEN’s “Day of Silence,” and promotes the event on the school day following the “Day of Silence.”

School officials told Zamecnik that her t-shirt violated school policy forbidding “derogatory comments” referring to sexual orientation, among other characteristics. The following year, Zamecnik, now joined by fellow student Alexander Nuxoll, again wanted to wear the shirt on the Day of Truth. This time, school officials suggested alternatives, including the slogan, “Be Happy, Be Straight” and an ADF-produced “Day of Truth” shirt saying “The Truth Cannot Be Silenced.” Zamecnik and Nuxoll refused those options and, with the help of the ADF, filed a lawsuit challenging school officials’ actions.

A U.S. district court in April 2007 found in favor of the school, but the plaintiffs appealed.

The 7th Circuit overturned the first ruling, in 2008, saying the school had not shown that the t-shirt message “Be Happy, Not Gay” would cause “substantial disruption.” But the appeals panel denied ADF’s request that it declare the school’s “derogatory comments” policy unconstitutional.

The 7th Circuit then sent the case back to the lower court with instructions to enter a preliminary injunction allowing the wearing of the t-shirts. It noted that “the district judge will be required to strike a careful balance between the limited constitutional right of a high-school student to campaign inside the school against the sexual orientation of other students and the school’s interest in maintaining an atmosphere in which students are not distracted from their studies by wrenching debates over issues of personal identity.”

On remand, the district judge granted the preliminary injunction allowing the two students to wear their t-shirts, then granted a summary judgment in their favor, awarding them each $25 in damages, and issuing a permanent injunction allowing any student to display the slogan on clothing or “personal items.”

This time, the school appealed, claiming in its brief that the district court improperly issued a summary judgment because the school had presented evidence—“numerous examples of emotional, violent and/or threatening reactions of students to the phrase ‘Be Happy, Not Gay’”—that should have warranted a trial.

The 7th Circuit issued its second opinion on the case on March 1, 2011, and said the school had not presented enough evidence that it had “a reasonable belief” the t-shirt would cause “substantial disruption.” It therefore ruled the summary judgment was valid.

Jack Canna, principal attorney of Canna and Canna, which represented the school, said in an interview that he thought “the court should have provided us with a trial into the problems the schools face.”

“A summary judgment presumes no issues of material fact,” he explained. “We felt there were issues related to the impact these messages have on kids,” but the court “just wasn’t impressed with the severity or derogatory nature of this piece of expression.”

Stuart Biegel, a member of the faculty at the UCLA School of Law and UCLA Graduate School of Education and Information Studies, analyzed the early stages of the Nuxoll case in his 2010 book, The Right to Be Out: Sexual Orientation and Gender Identity in America’s Schools. He said in an interview that Posner did show some “sensitivity to what LGBT youth were going through,” as he did in the earlier ruling, while he also “set forth some guidelines that try to respect everybody’s free speech rights.”

The Nuxoll case is only latest of several cases in which courts have been charting the boundary between harassment and free speech with regard to anti-gay sentiments expressed at school.

In the 2001 case Chambers v. Babbitt, a Minnesota high school told a student he could not wear a t-shirt saying, “Straight Pride.” The U.S. District Court for the District of Minnesota found that the t-shirt was unlikely to be disruptive, and therefore, the student had the right to wear it.

Biegel noted in his book that the court in Chambers still “went out of its way” to indicate the opinion was not anti-gay—and parts of Judge Donovan Frank’s opinion may be “among the most supportive of LGBT students” in a federal court decision. Frank noted, for instance, the challenges faced by LGBT youth and praised the school for its efforts to be inclusive.

And in a 2004 case, Harper v. Poway Unified School District, Tyler Chase Harper, a student at a San Diego area high school, wore a t-shirt to school on the Day of Silence saying, “Homosexuality Is Shameful” and that the school “had accepted what God has condemned.”

The school tried to ban the shirt, and Harper sued. In this case, however, the U.S. District Court for the Southern District of California and (on appeal) a panel of the 9th U.S. Circuit Court of Appeals ruled that the t-shirt went too far. Judge Stephen Reinhardt of the 9th Circuit wrote that the slogan interfered with the right of other students to be free from “verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation.”

Harper appealed to the U.S. Supreme Court, which vacated the 9th Circuit’s ruling and remanded the case to the 9th Circuit with instructions to dismiss the appeal to the 9th Circuit as moot, since the district court had, by then, entered a final judgment, stating that because Harper had graduated, his claims were now moot. The Harper case, however, spurred the ADF to create the Day of Truth as a counterpoint to the Day of Silence, Biegel noted.

The Day of Truth is now sponsored by the conservative Christian group Focus on the Family and has been renamed the “Day of Dialogue.” ADF is continuing to provide free legal assistance to participating students.

Copyright ©2011 Keen News Service. ALL RIGHTS RESERVED.

<!– –>

http://www.keennewsservice.com/2011/04/14/the-t-shirt-wars-courts-struggle-to-find-balance-between-free-speech-and-harassment/