Patterico's Pontifications

3/19/2011

No, the DOJ Did Not Say It’s Only Interested in the Bullying of Children Who Are Not Straight White Males

Filed under: General — Aaron Worthing @ 11:16 am



[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

So today I see this post over at the Washington Times’s Water Cooler blog saying this:

DOJ to white male bullying victims: Tough luck

The viral video sensation showing a [schoolyard] bullying incident at an Australian school has brought the issue of bullying back into the spotlight. Here in the United States, the Obama administration has made school bullying a federal issue….

Here is the catch. DOJ will only investigate bullying cases if the victim is considered protected under the 1964 Civil Rights legislation. In essence, only discrimination against a victim’s race, sex, national origin, disability, or religion will be considered by DOJ. The overweight straight white male who is verbally and/or physically harassed because of his size can consider himself invisible to the Justice Department.

OMG, here’s the latest example of a Department of Justice that is only interested in protecting women and minorities!

…except not so much.  Now I will put aside what one might rationally read between the lines for a moment, but let’s look at what the Department of Justice actually said:

The Civil Rights Division and the entire Justice Department are committed to ending bullying and harassment in schools, and the video highlights the Department’s authority to enforce federal laws that protect students from discrimination and harassment at school because of their race, national origin, disability, religion, and sex, including harassment based on nonconformity with gender stereotypes.

So let’s go back and look at what the Washington Times said again:

Here is the catch. DOJ will only investigate bullying cases if the victim is considered protected under the 1964 Civil Rights legislation.

Well, first leaving aside that the Washington Times doesn’t seem to understand that they are by implication talking about the Americans With Disabilities Act (ADA), too, here’s the thing.  Every single one of you are protected by that law.  There is a myth popular in a lot of circles that there is such as thing as “protected classes” under our anti-discrimination law, but that is (mostly) untrue.  Any person, white, black, Asian, etc. who is discriminated against by another because of his or her race, is protected under these laws and the same is true regarding gender-based or religion-based discrimination.  White males can and do sue under the Civil Rights Act of 1964 all the time.

There are two examples, that I know of, of our Federal anti-discrimination laws setting up a protected class.  The ADA only protects handicapped persons—and despite the fact that I belong in that protected class, I think that is wrong.  And the Age Discrimination in Employment Act (ADEA) (completely inapplicable to schoolyard bullying, obviously) only applies to individuals above the age of forty.  So hey, next time you run into someone who is depressed to be turning the big four-oh, you can say, “hey, congratulations, you are now protected by the ADEA!”  That should make them feel much better, right?

And the Washington Times seems to get this writing next:

In essence, only discrimination against a victim’s race, sex, national origin, disability, or religion will be considered by DOJ.

But then the very next line contradicts that:

The overweight straight white male who is verbally and/or physically harassed because of his size can consider himself invisible to the Justice Department.

Now it is true that size-based discrimination is (probably) not covered under federal anti-discrimination laws (although a few people have tried to claim that being fat was a disability under the ADA—something I oppose).  But the straight white maleness of the victim has nothing to do with it.  It could be a fat, gay, female black/Filipino/native American mix and as long as they are only bullying her for being fat, there is no federal issue.  And it’s not fair to the Washington times to imply that the Department of Justice is saying that the color, sexuality or gender of the victim is even officially relevant.  If you say that it has to violate the federal civil rights laws, you are at least facially saying that you don’t care about the gender, race or religion of the victim but whether the attacker is motivated by those traits, whether the victim is in the “historically oppressed group” or not.

Now, you might rationally suspect that regardless of their words, they will only protect those “historically oppressed groups.”  But the Department of Justice is not saying it will take that approach.

Mostly.  On the other hand, there is a decided emphasis on discrimination based on “nonconformity with gender stereotypes.”  Indeed this site puts forth the idea that discrimination against gay students, or merely ones who do not conform with gender stereotypes, is a federal concern.

Now first, you will look in vain for any federal law that protects against discrimination based on sexual orientation.  Love it or hate it, it doesn’t exist.  But there has been a popular legal theory put forward by various academics and a few lawyers that anti-gay discrimination is gender discrimination.  Let me give you a practical example of how this theory works in the context of gay marriage.

Imagine a man named James came to a justice of the peace and said, “hey can you marry me to my lifemate, Chris?”  The justice of the peace says, “well, bring Chris in.”  If Chris turns out to be short for Christina, the justice of the peace will marry them.  But in many states if Chris turns out to be short for Christopher then the justice of the peace will refuse.  See?  So it depends on the gender of “Chis” whether they will get married, thus it is gender discrimination!

And the same logic applies to a number of different situations.  Like if imagine Chris goes to work wearing a dress.  Now if Chris is short for Christine, most employers will have little problem with that.  But if Chris stands for Christopher, then they might.  Thus, the theory goes, telling one gender but not another that it can wear a dress to work is gender discrimination.  And thus in many ways it is alleged that if a person “acts gay” and is discriminated against for that reason, then that is gender discrimination.

And on and on it goes, with it theoretically going as far as to say that discrimination based on sexual preference is a federal legal matter.

But ultimately it fails for several reasons.  First, it fails the Dartmouth College v. Woodward test of intentionality.  While Dartmouth College was dealing with the interpretation of the Constitution rather than statutes, this line seems to outline a rational approach to interpreting the laws:

It is not enough to say that this particular case was not in the mind of the convention when the article was framed, nor of the American people when it was adopted. It is necessary to go further and to say that, had this particular case been suggested, the language would have been so varied as to exclude it, or it would have been made a special exception.

And bluntly, in 1964, if you had convinced the people the people passing the law that they would be protecting gay people from discrimination based on their sexual preference, it is fair to say they would have written something to avoid that interpretation.

Indeed, in 1990, when passing the ADA, they did exclude discrimination based on sexual orientation.  Tucked toward the back of the law, it says:

(a) Homosexuality and bisexuality

For purposes of the definition of “disability” in section 12102(2) of this title, homosexuality and bisexuality are not impairments and as such are not disabilities under this chapter.

(b) Certain conditions

Under this chapter, the term “disability” shall not include

(1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;

(2) compulsive gambling, kleptomania, or pyromania; or

(3) psychoactive substance use disorders resulting from current illegal use of drugs.

Love it or hate it, it is an abuse of language to pretend that the people who wrote the Civil Rights Act of 1964 intended to protect gay people from discrimination.  And don’t even get me started about claiming that the Equal Protection Clause (ratified in 1868) would do the same.  You may fondly wish the law said these things, but they don’t.

But let’s pretend for a moment and say that this interpretation was correct—that our laws banning gender discrimination based sexual orientation discrimination, too.  Then doesn’t it follow that discrimination against straight people is because they are straight just as unlawful as discriminating against gay people based on being gay?  And yet, they exclusively talk about anti-gay discrimination.

Of course the real problem in all of this is the instinct to “make a federal case” out of everything. First, the law itself doesn’t actually support that.  For instance in Oncale v. Sundower Offshore Services (dealing with same-sex sexual harassment–bullying really) the Supreme Court said that:

The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the “conditions” of the victim’s employment. “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII’s purview.”… We have always regarded that requirement as crucial, and as sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace—such as male-on-male horseplay or intersexual flirtation—for discriminatory “conditions of employment.”

In other words, most ordinary cases of bullying wouldn’t qualify as a matter of law, a principle not once mentioned in this promotional materials, leading kids to think that they can report every incident of bullying, claim a racial, gender-based, disability based or possibly sexual-orientation-based motive, and turn the matter into a federal investigation.

I have some sympathy for the idea that if a kid is being absolutely tortured in school—something well above swirlies, Indian burns, etc. but moving into the realm of rape or broken bones—because of discriminatory motives and the state authorities are doing nothing (let’s not forget that technically most forms of bullying qualifies as battery), then maybe then the Federal Government should step in.  And certainly if a school took the attitude that bullying was only going to be punished if it happened to white kids or something like that, that would raise constitutional problems.  But this effort, without very much to make you think they would respect those rational limits, is fairly appalling and is a valid reason to complain about all of this.

[Posted and authored by Aaron Worthing.]

43 Responses to “No, the DOJ Did Not Say It’s Only Interested in the Bullying of Children Who Are Not Straight White Males”

  1. I discriminate against the Washington Times at best it’s day-old Newsmax with the crust cut off

    happyfeet (ab5779)

  2. I only got to the Washington Times when I want to know what Brent Bozell thinks about an issue. So far this hasn’t happened.

    happyfeet (ab5779)

  3. True as it goes, but the letter of the law is the least important thing. Look at the evolution of the hate crime industry. It’s easy to see what the laws say on their face, but in practice, it’s the unwritten rules — the “training,” and weirdly unscientific “statistic” gathering, and promotion of those manufactured “statistics” that matter the most.

    For one instance, the “gender bias” category is used virtually exclusively to prosecute cases involving non-biologically-born (that’s the best I can do) males or females (mostly the latter). Of course, the laws aren’t written that way (what exactly is “gender” versus “sex”?), but as I was researching these laws as they pertain to women following their passage in most states (during Holder’s last crack at this), trainers and activists routinely acknowledged that the gender category was intended to apply, not to women, but to incidents involving transvestite/transgender and cross-dressing persons only (they didn’t, of course, belabor the point publicly). “Sex” was for females, “sexual orientation” for gays and lesbians, “gender” for, well, tv/tg/cd, and also “questioning,” but even when “sex” was included as a protected category, it was never enforced when the victim was a non-gay, biologically-born female. To complicate things, there was (I believe it’s still there) a federal rule regarding hate crimes on federal land that included “sex” but specifically excluded sex crimes against women on federal lands from being counted as hate.

    The predominant activist groups, quite sleazily, were terrified that sex crimes against women, and sexual harassment, and harassing speech, would start being “counted” as hate crime, therefore placing their statistics and organizational priorities way down on a list of “hatreds” inevitably dominated (God forbid) by serious violent crimes against women. In the mid-nineties, they were quite open about discussing such concerns, but they quickly learned to control the bean-counting behind the scenes without acknowledging it. Bad PR. And they always had quasi-feminist but gay-dominant organizations like the NOW to run cover for them.

    So there were cases, for a while, where a serial rapist would get charged with ethnic hate-base rape for some of his crimes but just run-of-the-mill rape for others. There was a case being investigated in rural Georgia where agents tried to determine whether a transvestite prostitute was killed because her assailant was angry to discover her real sex (hate crime) or if he was just killing a woman (not hate).

    And try asking, for instance, the hate crimes prosecution task force in NYC what they do when a serial rapist attacks woman after woman, or carves a sexual pejorative into a heterosexual victim’s body, or uses sexual slurs while sodomizing some 80-year old, or blinds his victim and tortures her for days on end. That’s not hate, you see. But they won’t admit it.

    The possibility of serial rape being counted as a hate crime against women (or men, in the case of a gay serial killer) is something the activists have always feared. I had the luck of speaking to one trainer from the SWC who acknowledged to me that the police and prosecutors they trained (using our tax dollars) “always” asked about rape of women, but that the SWC “didn’t put that in writing” and dealt with it only during Q & A.

    Five minutes later, that woman’s superior called me up and told me that I did not have permission (!) to publish that part of the interview. But I’ve spoken with police who confirm this strategy, and the published training manuals always exclude this obvious subject.

    My years of researching the hate crimes movement left me utterly astonished by the unchallenged, raw power-politics employed by these groups — and also the ease with which they moved into the DOJ and justice departments in virtually every state, dictating unwritten but consistent protocols that are entirely political and bear little objective resemblance to hate crime laws as they are written and presented to the public (which are, even if enforced with an even hand, extremely problematic). The activists have constructed a subjective, politicized, and untouchable system of unequal justice that continue to grow despite budgetary shrinkage in other parts of law enforcement and the courts.

    These are the same people who are now orchestrating the bullying movement, in the DOJ and (perhaps more importantly) the Department of Education. What the law says is the very least of it, as we will see when those “statistical” anonymous reporting mechanisms start gearing up.

    Tina Trent (54b031)

  4. They intend to put the victim on the defensive. What the government would be doing in a sane world is comparing crimes against differents. If one group commits 10% more violent crimes against a different group compared to vice versa, there would be reason to increase the penalties against members of the offending group to help even it out. If one group commits 5X the amount of crimes than vice versa, that would indicate a holocaust in the making and extreme action should be taken to end the holocaust.

    j curtis (30ae12)

  5. Eric Holder should have himself arrested and prosecuted

    Rodan (03e5c2)

  6. If you bring cookies you should bring enough for everybody and maybe even a few extra. Same with deviled eggs.

    happyfeet (ab5779)

  7. I do not expect the Department of jackassery to stick up for me when i get bullied.

    DohBiden (984d23)

  8. The DOJ shouldn’t have any interest in any bullying cases. It’s none of the feds’ damn business.
    Bullying cases should be handled by:
    1. the parents. If they can’t stop it, they should go to:
    2. the school. If the school administration can’t stop it the parents should go to:
    3. the school district. If they can’t stop it the parents should go to:
    4.the local police
    That’s as far as it should go.

    SteveP (b3d7cd)

  9. “I do not expect the Department of jackassery to stick up for me when i get bullied.”
    Comment by DohBiden — 3/19/2011 @ 1:04 pm

    How old are you?

    Klept (b11060)

  10. Hey Obama is busy making us into argentina[with an 18% poverty rate.] So he is too busy to deal with this.

    DohBiden (984d23)

  11. THANK YOU for posting this! I love visiting your blog!!

    Steve
    Common Cents
    http://www.commoncts.blogspot.com

    Steve (88e6e2)

  12. 1. How does the government know why someone is being bullied? That is in the mind of the bully only.

    2. The Obama administration in the New Black Panther case is using race as the reason to enforce the law. If your voter rights are infringed and you are black, you have their support. If not, forget it.

    3. This whole “verbal” bullying concept is in violation of the First Amendment. If what I say makes you sad, do I lose my right to free expression? In the Westboro case, the Supreme Court said no. Unpopular, impolite, hateful, intentionally hurtful speech is still protected.

    Arch (24f4f2)

  13. Yes calling palin names is fine but calling the department of justice hurtful names means i’am immature.

    DohBiden (984d23)

  14. calling politicians names is always fine especially American ones cause of how hard they suck

    happyfeet (ab5779)

  15. You mean Bawney Fwank right?

    I agree if you do.

    But don’t call obama or the DOJ names or your racist and immature.

    DohBiden (984d23)

  16. Physical harm notwithstanding, we are seeing the result of the intentional feminization of American male children in the public schools. If a child draws a stick figure of someone with a gun, the public schools treat him as if the gun were real. Students who defend themselves are punished as severely as is the assailant. Boys are going to fight. They need to learn how to defend themselves. It’s natural.

    Arch (24f4f2)

  17. #12 Arch: intentionally hurtful speech would not always be protected, similar to the fact that “yelling fire in a crowded theater” is not protected.

    A school would be perfectly within the law to punish a student who harassed another student with a pattern of repeated insults over a prolonged time such as days, or longer.

    Ken in Camarillo (645bed)

  18. Thank you for the post. I will admit I had real concerns with the original article and am much more at ease with your explanations.

    However, in light of the currently third year of the voting rights and/or civil rights protection cases with regard to the NBPP thugs with billy clubs at the polling places, it does not escape concerns of the DOJ deciding which laws they will or will not enforce.

    Terry in GA (0f2ffe)

  19. The Times is correct, as the CRD is notorious for not enforcing the CRA in favor of straight white males. The ideologues who populate CRD think that only minorities are protected by the Act, as AG Holder has stated. Just as the employees of the CRD objected to the case against the Ike Brown case.

    Federale (0c08cf)

  20. Not to worry . . . when they choose to tip the balance in favor of defending minority classes they will simply invoke the hate crimes statutes.

    Bada-boom, bada-bing.

    Icy Texan (cec02e)

  21. I know for a fact from personal experience that the thrust of your article was right on the money.

    When I found that my dear, elderly mom’s civil rights were being outrageously violated, the FBI Agent who investigated the case told me candidly that, sorry, if your mom wasn’t a wealthy white woman, we would pursue this case and bring criminnal charges against the offenders. But in view of the circumstances, he could only suggest that I could pursue the issue in civil court, not optimistic that I would prevail there either, because of the liberal, activist judges to which it would be assigned.

    Needless to say, I’ve become disgusted with the entire legal apparatus in this despicable country, a country made more and more despicable every day by the sleaziness of most of its inhabitants, ample additional evidence of which were the degenerates who elected that madman, empty suit, street hustler and decadent dilletante, Obama, and gave us Clinton, Holder, Kagan, Sotomeyer and Napolidumbo, also. This country has become f*cked-up beyond any chance of redemption. I once fought for this country. I wouldn’t bother to defend it anymore. Americans aren’t worth the sacrifice. They’re lazy, useless, immoral and decadent, too.

    Brian (75c9eb)

  22. Ken # 17. “Yelling fire in a crowded movie theater” is protected if the owner of the theater says it’s okay. Look at the Rocky Horror Picture Show. Not only do they yell “fire” they actually light things on fire.

    If I tell you you are fat, or ugly, or stupid and don’t threaten to harm you, it may be verbal harassment but it is is simply speech. We have the right to be rude, obnoxious and impolite. Insults are okay, by law.

    Arch (24f4f2)

  23. To be fair, the DOJ doesn’t give a single ounce of f**k about the fat kid who body-slammed that bully…

    Because it was in freaking AUSTRALIA!!!

    Scott Jacobs (d027b8)

  24. Totally off-topic but … BUTLER !

    DRJ (fdd243)

  25. Who do I root for — Arizona or Texas? Quite a pickle!

    Icy Texan(formerlyAZ) (2f4d96)

  26. I certainly understand being true to your roots, Icy, and going with Arizona. Or you could root for one in the first half and the other in the second half.

    DRJ (fdd243)

  27. Who do I root for — Arizona or Texas? Quite a pickle!

    Comment by Icy Texan(formerlyAZ)

    Texas, of course.

    Dustin (c16eca)

  28. terry

    absolutely agree with your point on the black panther case.

    Aaron Worthing (73a7ea)

  29. “Every single one of you are protected by that law. There is a myth popular in a lot of circles that there is such as thing as “protected classes” under our anti-discrimination law, but that is (mostly) untrue. Any person, white, black, Asian, etc. who is discriminated against by another because of his or her race, is protected under these laws and the same is true regarding gender-based or religion-based discrimination. White males can and do sue under the Civil Rights Act of 1964 all the time.”

    Mr. Worthington, this comment is so much poppycock. I have been told by several attorneys (including two City attorneys and one former Imperial County DA) that white males under 40 are not a protected class.

    If fact, one of these attorneys, specializing in civil rights law told me “you are white, straight and a male; there is nothing I can do for you.”

    Some protection.

    BHA (b8a0ab)

  30. Eric Holder’s people are insulted.

    DohBiden (984d23)

  31. If I root for Texas my mom will disown me.

    Icy Texan (2f4d96)

  32. #22 Arch: in general isolated insults are not illegal and generally protected by the first amendment as you say. However, when there is a continuing pattern of insults for a purpose of harassment, then it would no longer be protected by the first amendment if there were any ordinance or law against harassment.

    Better example: verbal sexual harassment is not protected by the first amendment.

    Ken in Camarillo (645bed)

  33. Ken said, “Better example: verbal sexual harassment is not protected by the first amendment.”

    Only in the work place, and the penalty if you win is civil, not criminal. You can sue anyone for anything, anytime. The problem is winning.

    Stalking someone is criminal. Threatening to do physical harm is assault if you have the ability to carry it out.

    “Sticks and stones can break my bones, but words will never hurt me!”

    Arch (24f4f2)

  34. I absolutely agree with Steve P. Nowhere in the constitution is the Federal government given any power to regulate bullying.

    The very first question anyone should ask when the the Federal government threatens to step in is, is this really a proper and constitutional function of the federal government?

    I’m sorry, school bullying is not. It is the Nanny state run amok.

    David (2f3d49)

  35. Mr. Worthington, this comment is so much poppycock. I have been told by several attorneys (including two City attorneys and one former Imperial County DA) that white males under 40 are not a protected class.

    They aren’t a suspect class, but they are protected by anti discrimination law. Your city attorneys and DA are wrong, or perhaps they were unclear.

    A quick google turned up a large number of white men who won discrimination suits.

    Dustin (c16eca)

  36. You are comparing apples to rutabagas. The watimes article is talking about what the DOJ WILL INVESTIGATE. You are arguing about how YOU MIGHT CLAIM under the law. Re: DOJ, consider their New Black Panthers settlement and the subsequent testimony about their determination to never act on behalf of white people.

    Tom (4835ee)

  37. I’am shocked.

    DohBiden (984d23)

  38. NOT

    DohBiden (984d23)

  39. Seems to me they should consider updating the motto on the frieze at the Supreme Court Building.

    You know, the one that brags about “Equal Justice Under Law”.

    That’s probably just some crap left over from some previous administration.

    bobdog (166386)

  40. #33 Arch: The points in my #32 are precisely illustrated in the California Education Code:
    Sexual Harassment: sections 212.5(c) and 48900.2.
    Generic Harassment: section 48900.4.
    These examples are not workplace regulations, they are regulations protecting students from verbal and other harassment.
    “Sticks and stones can break my bones, but words will never hurt me!” True enough, but the words can get the speaker expelled.

    Ken in Camarillo (645bed)

  41. #40Ken:

    Education code is a set of public workplace rules that govern public school employees in the same manner in which company policies govern the behavior of their workers. Rules and policies are not laws.

    These days, being expelled from a public school may be a reward not a punishment.

    Arch (24f4f2)

  42. What Steve P said! Bullying is a wholly local thing, and shouldn’t be anything with which the federal government is concerned.

    The Federalist Dana (5a4fb2)

  43. #41 Arch: The California Education Code is one of the 29 codes that ARE the State Laws of California. The sections I referenced relate to the behavior of a public school student that can get that student expelled, and are not “rules that govern public school employees”.

    You can see the California State Code at
    http://www.leginfo.ca.gov/calaw.html

    Ken in Camarillo (481b14)


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