It Shouldn't Take a Lawsuit to Stop Homophobic Adults from Bullying Students to Death - But It Did
The following is an excerpt from the new book Beyond Bullying : Breaking the Cycle of Shame, Bullying, and Violence by Jonathan Fast (Oxford University Press, 2016):
In Minnesota’s 11th district, a student named Alex Merritt was being harassed by his social studies teacher, Diane Cleveland, whom he saw before lunch; and by Walter Filson, whose class in law enforcement he took after lunch. They bullied him in tandem, riffing on what they perceived as his homosexuality or bisexuality although Alex was neither. During lunch Cleveland would sit with Filson, recapping the witticisms she had made to Alex; then he would pick up on her bullying themes in his after-lunch class. For example, when Alex told Cleveland that he wanted to do a report on Ben Franklin, she responded, “Why? Do you have a thing for older men?” After lunch, Filson referred to Alex as “Mr. Ben Franklin” and repeated the taunt about Alex’s attraction to older men. The two teachers modeling this kind of behavior sent a message to students throughout the school: that Alex was available as a punching bag for those who needed to manage their own shame through “attack other” mode. “I got death threats from random kids, saying things like ‘Shut up, you queer;’ and, ‘I’m going to kill you, you queer,’ ” Merrick told a journalist for a local paper.
Despite his reluctance, Alex eventually told his mother about it and in May of 2008 she filed a complaint with the Minnesota Department of Civil Rights. The school board settled for $25,000. Alex, who had transferred to a high school in another district 25 miles away (he graduated in the spring of 2009) said that the money couldn’t “fix a broken heart or bring back all my friends.” The school board gave Cleveland a slap on the wrist and apparently ignored Filson’s bad behavior altogether.
In the wake of this humiliating and costly experience, and perhaps also in consideration of the recently enacted Mathew Shepard law, the school board decided to review its Sex Education Curriculum Policy, which had remained unexamined for the prior 14 years. A revised version of the Sexual Orientation Curriculum Policy, document 604.11, was cautiously drafted by the district’s legal department, committed to paper, and released throughout the school system and to the public.It is reprinted here in its entirety:
SEXUAL ORIENTATION CURRICULUM POLICY
It is the primary mission of the Anoka-Hennepin School District to effectively educate each of our students for success. District policies shall comply with state and federal law as well as reflect community standards. As set forth in the Equal Education Opportunity Policy, it is the School District’s policy to provide equal educational opportunity and to prohibit harassment of all students. The Board is committed to providing a safe and respectful learning environment and to provide an education that respects the beliefs of all students and families.
The School District employs a diverse and talented staff committed to serving students and families from diverse backgrounds.
The School District acknowledges that one aspect of that diversity regards sexual orientation. Teaching about sexual orientation is not a part of the District adopted curriculum; rather, such matters are best addressed within individual family homes, churches, or community organizations. Anoka-Hennepin staff, in the course of their professional duties, shall remain neutral on matters regarding sexual orientation including but not limited to student led discussions. If and when staff address sexual orientation, it is important that staff do so in a respectful manner that is age-appropriate, factual, and pertinent to the relevant curriculum. Staff are encouraged to take into consideration individual student needs and refer students to the appropriate social worker or licensed school counselor.
Anoka-Hennepin District No. 11
Coon Rapids, MN 55433
Adopted February 9, 2009
At first glance, it may have appeared to parents as no more than another ripple in the river of memos about school lunches, snow days, and home and away games; it might have seemed to be a brief, reasonable, and respectful document. At second reading, they might have paused over the sentence “the Anoka-Hennepin staff, in the course of their professional duties, shall remain neutral on matters regarding sexual orientation” and wondered what it means to remain neutral. Does it mean to say, “I don’t care if you’re straight or gay, I will treat you with the same respect as I would treat anyone else?” Or does it mean that when an openly gay teen is being humiliated or physically abused in the classroom, a teacher will refrain from defending him for fear of appearing less “neutral”? History shows that when an authority, be it an individual or a nation, remains neutral in the face of aggression, it is taken as covert approval of the aggression and encourages further abuse. To do nothing in the face of cruelty is to enter a tacit agreement with the abusers.
Teachers were confused by the “neutrality” document and expressed fear of losing their jobs during a very bad economy. The district responded with a PowerPoint that illustrated in concrete terms how to remain neutral while helping a gay student who was being bullied. If a teacher heard a gay slur, one slide explained, he or she should say, “That language is unacceptable in this school.” If further enforcement was required, he or she might continue, “In this school we are required to welcome all people and to make them feel safe.” Notice the inclusion of the word “required,” as though managing a classroom was no more following a list of orders. Teachers were reminded never to show “personal support” for gay students in the classroom. It is questionable whether any learning institution can function in a democratic society if teachers are required to submerge their own beliefs in the process of educating children, particularly when these beliefs involve civil rights.
On October 16, after eight months of this “neutrality,” Thomas John Hayes, or T. J. as he was known to his friends, committed suicide. He was 16, a student at Blaine High School (one of the five high schools in the Anoka-Hennepin School District). He was not, as far as people knew, gay. A month later Samantha Johnson, 13, an eighth grader at Fred Moore Middle School, who had been trying unsuccessfully to start a Gay-Straight Alliance, committed suicide. Eleven days later another Blaine High School student, Aaron Jurek, 15, committed suicide. After Christmas vacation, Nick Lockwood, 18, an Andover High School senior, followed in their footsteps. On May 4, July Marie Barrick, 15, a Champlain Park High School student, took her own life, and two months later, Justin Aaberg, a student at Anoka High School, followed their lead. Next was Cole Wilson, an Anoka High School senior, two months later. The suicide of Jordan Yenor, 14, on May 14, 2011, a student at Northdale Middle School, made a total of eight suicides in just under two years. One student compared the experience to living in a horror movie. Another student recalled, “People were dying one after another. Every time you said goodbye to a friend, you felt like, Is this the last time I’m going to see you?”
For every child who took his or her own life, an unknown number of District 11 students contemplated the act. During the period in question, some 700 students from the district visited mental health counselors, an exceptionally high number. The counselors reported an “explosion” of suicidal ideation and dangerous behaviors, including students cutting themselves with knives and razor blades and asphyxiating themselves while playing what they called the “choking game.” Incidents of cutting increased from about one a week to several a day, according to one middle school teacher. Some children were hospitalized because they were assessed by professional clinicians as posing a danger to themselves.
Eleven months passed before anyone publically suggested a connection between the Neutrality Policy and the suicides. During a school board meeting on August 23, 2010, Justin Aaberg’s mother approached the microphone, her eyes filled with tears. She placed a picture of a handsome 15-year-old with cornsilk hair and blue eyes on the desk before her, explaining that this was her son, that he had been openly gay, and that he had hanged himself six weeks ago. It was only after his death that she learned of the district’s sexual orientation policy, which she believed left gay students feeling isolated and doubting their self-worth. She also shared what she had heard from teachers about their confusion regarding the use of the word “neutrality” and how it compromised their ability to defend bullied students. She demanded the policy be revoked. “What about my parental rights to have my gay son go to school and learn without being bullied?” Aaberg asked, openly weeping now, while the board stared back, expressionless.
“Just so you know,” the board chair responded, “there are two distinct policies. One’s a curriculum policy; the other’s a bullying policy.” In other words, although both policies addressed sexual orientation, neither one was technically a sexual orientation policy. This important distinction may have been pointed out to him by the school board’s attorneys, since institutions that received Federal monies were forbidden to have special policies regarding the treatment of minorities. He went on to say that no student in the district could be harassed for any reason, and teachers were expected to take immediate disciplinary action if they witnessed a bullying incident.
Superintendent Carlson took it upon himself to personally investigate the suicides. Could one person with an important full-time job and no background or training in mental health care accurately assess what was possibly one of the worst adolescent suicide clusters in recent years? Usually such tasks are left to the Centers for Disease Control and involve a team of experienced researchers, who may spend months in the field. Carlson, undaunted, conducted “a series of conversations among district officials, as well as with parents who knew the [deceased] students.” Shortly thereafter he communicated his findings in a 74-second telephone voicemail message relayed robotically to every household in the district with a school-aged child.
Based on all of the information we’ve been able to gather, none of the suicides were connected to incidents of bullying or harassment … The continuation of inaccurate information is not helpful. Once again we have no evidence that bullying played a part in any of our students deaths … In a few incidents people told the school board and district leaders that employees stood by while students were bullied. These statements are also not true. We have no evidence of that occurring.”
This kind of message, which denies that persecution exists, contributes to what has been called an “invalidating environment” and constitutes a powerful form of shaming. Jefferson Fietek told me that prior to Carlson’s telephone message, he would receive one or two text messages a month from gay students who needed his support. After the message, the rate rose to eight or ten a day. When he began to receive text messages from students in crisis while being interviewed by CNN, the interviewer demanded to know if the interruptions had been prearranged.
They had not.
The local evangelical community supported Carlson’s “findings.” In a blog entree titled “Gay Activists Manipulate Suicide Tragedy for Ideological Purposes,” Tom W. Prichard, the president of the Minnesota Family Council, wrote that the suicide of Justin Aaberg was not the result of bullying but rather of sadness over his “male lover having an affair.” Prichard based this assessment on information gleaned from parents of students in the district (but not Justin’s parents, classmates, or teachers). He said that God had created us “male and female with sexual expression designed for a lifelong union between a man and a woman” and that “fighting against this reality is the reason alternative forms of sexual expression … will put people at greater risk [of suicide].”
Barb Anderson, interviewed on a radio program called Americans for Truth About Homosexuality, attributed the District 11 suicide cluster to the presence of LGBT support services and advocacy groups and their attempts to make gay children feel legitimized. She admitted that bullying of gay students existed in the schools but added that they had no one but themselves to blame for being open about their gender orientation. “These kids are locked into a lifestyle with their choices limited,” she told Peter LeBarbara, a former director of the Minnesota Family Council, who hosted the show, “and many times this can be disastrous to them as they get into the behavior which leads to disease and death.”
The battle over maintaining the dignity, respect, and safety of homosexuals in Minnesota’s District 11 did not go on in a vacuum. Similar skirmishes were taking place in well-to-do suburbs in Helena, Montana; Alameda, California; and Oak Park, Chicago. Gay students were undergoing the same repertory of insults: being urinated on, stabbed with pencils, shoved into lockers, and hospitalized with broken ribs. While liberal parents were suing school boards to put a stop to such behavior, other parent groups were upping the ante, campaigning to remove books such as And Tango Makes Three from school libraries for fear that exposure to the true-life tale of two male zoo penguins raising a baby penguin would normalize homosexuality and “turn” straight first graders gay.
While the District 11 suicide cluster was defined by place—a Minnesota county—it overlapped with another series of adolescent suicides, this one highly publicized. Although it spread across the country, it occurred during the last three weeks of September 2010, so it might have been considered a cluster in terms of time. On the ninth of the month, Billy Lucas, a 15-year-old openly gay boy from Greensberg High School in Indiana, hanged himself after years of being tormented about his sexuality. On the nineteenth, Seth Walsh, a 13-year-old boy in Tehachapi, California, committed suicide after a “relentless barrage of taunting, bullying and other abuse at the hands of his peers.” On the twenty-second, Tyler Clementi, a new freshman at Rutgers University in New Jersey and a fine violinist, jumped from the George Washington Bridge after learning that his roommate had secretly broadcast his tryst with another man on the Internet. The following day Asher Brown, an eighth grader in Harris, Texas, who had been bullied throughout middle school, shot himself in the head. Earlier that day he had been knocked down two flights of stairs for the amusement of his tormentors. On the twenty-ninth, Raymond Chase, a 19-year-old gay African American and sophomore at Johnson & Wales College in Rhode Island, took his own life after being rejected as a lover by a heterosexual male friend.
The Department of Education’s Office of Civil Rights issued another “guidance letter” on the subject of bullying to all the schools and higher learning institutions in the United States that were receiving Federal funds. The letter was not specifically about gender bullying. The subject did not appear until page 7, sandwiched between sexual harassment and disability harassment. It described a typical case of bullying of a gay high school student. Because the student self-identified as gay and the harassment was homophobic, the school in the example did not believe that the aggressive acts were covered by Title IX. Title IX makes sexual harassment illegal but seems ambiguous (to some) about the bullying of LGBT students. Eleven states that wanted to be clear about where they stood in relation to this issue had passed their own anti-LGBT bullying legislation. Some schools believe that the law applies only to boys harassing girls and, on rare occasion, the opposite. The “guidance” clears up any possible misconceptions.
Title IX prohibits harassment of both male and female students regardless of the sex of the harasser—i.e., even if the harasser and target are members of the same sex. It also prohibits genderâ€�based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sexâ€�stereotyping.
The letter goes on to state that the school has an obligation not simply to end the harassment and punish the bullies but also to “eliminate the hostile environment.”
In October President Obama recorded a video supporting gay teens for a website called “It Gets Better.” The site was created by Dan Savage, an openly gay journalist, and his partner, Terry Miller, shortly after the suicides of Justin Aaberg and Billy Lucas. It encouraged the well-known and little-known, the gay and the straight, to upload videos expressing the idea that gay life gets better after one reaches the age of majority and can behave, dress, and think as he or she likes without the fear of being beaten or shamed. Savage and Miller were brutally bullied when they were young but had reached a point in their lives where they managed their shame and anger through social action, by writing and lecturing on the subject of gay rights, rather than turning those emotions against themselves.
The Ballad of Dez and Sarah
At the end of January, two young women, seniors at Champlin Park High School (another of the five high schools in the Anoka-Hennepin district) felt the sting of discrimination and responded with social action rather than self-harm. They challenged the system in a peaceful yet powerful manner, with a strong sense of conviction in their cause. Their actions had far-reaching effects.
During the darkest days of winter, when the heart longs for the sound of a robin or the sight of a crocus poking through the snow, Champlin Park High School students buoy their spirits with a week of activities called Snow Days. Traditionally, the week begins with the Pep Fest and the coronation of a popular senior class boy and girl as the school’s king and queen. Those who have been chosen as members of the Royal Court walk in twos across the field house, to the stage where the thrones await. The coronation is followed by a formal prom. Desiree Shelton, or “Dez” as she was known to her friends, and Sarah Lindstrom were among those elected to the Royal Court. They were “out” lesbians and engaged in a romantic relationship with one another. They had campaigned together for election to the Royal Court, seeing this as an opportunity to make “a political and public statement about gender roles and the visibility of LGBT students and couples at CPHS.” Lindstrom later told an interviewer that, while she had heard about the suicides, she had not known any of the students personally and was unaware that any were LGBT related. While this may seem strange, the suicides were dispersed among five large high schools and one middle school and mostly involved students with whom seniors rarely deign to socialize: freshman.
The coronation traditionally began with the 12 members of the Royal Court processing through a decorated arch erected for the occasion at the far end of the field house and then forming boy and girl couples according to their own preference (or the decision of an administrator if they had no preference). As they walked the length of the field house, the announcer introduced each couple over the PA system and shared some interesting facts about them. Finally, they took their place on stage, and stood by during the coronation of the king and queen.
Being openly gay and in a relationship, Shelton and Lindstrom decided to process as a couple. Two boys volunteered to process together to “maintain the couple format.” Six days before the ceremony, the young women were approached by a teacher who told them that the plan was not acceptable. They would meet with the principal on the following day to discuss the matter.
They immediately sought out Mathew Mattson, the assistant principal who was in charge of the Snow Days activities. He told them that the administration had discussed the matter and agreed that “it is tradition for only a boy and a girl to process in together.” They feared it would make the two boys who had agreed to walk together “uncomfortable” and that the sight of two women walking together would make some of the students “uncomfortable.”
Shelton and Lindhurst brought a number of sympathetic and supportive teachers with them to the meeting with Principal Michael George the next day. He repeated his concerns, adding that the final decision would not be made until he consulted with Dennis Carlson, the district superintendent. A follow-up meeting was scheduled for January 27, a Thursday. The Royal Court was to be held on the following Monday.
On Thursday the young women were told that the procession would be cancelled and the event would begin with everyone seated on stage. This new arrangement, the principal believed, “would make everyone comfortable.” Mattson said that even if the young men believed they were comfortable marching in a pair, they might not be “three months from now when a picture of them processing together surfaces and rumors get started that they are gay … they might then get bullied, commit suicide, and their parents would blame the school district.” They also discussed the possibility of canceling the event altogether. Principal George added that at a school board meeting earlier that week parents had “praised them for keeping gays out of the schools and were otherwise hostile toward gays and lesbians.” This made them worry about “student safety” if the young women walked in the procession together.
On Thursday afternoon, Ms. Shelton told her mother that the school would not permit her to march alongside Ms. Lindstrom.
“That’s bullshit,” her mother replied. “You need to go get them.”
That evening they contacted the National Center for Lesbian Rights and the Southern Poverty Law Center for advice. The former organization, founded in 1977, tackled a broad range of gender orientation and expression issues through education, litigation, and advocacy; the latter, the prowling pit bull of civil rights advocacy, was the very same agency that had sunk its teeth into the leg of the Ku Klux Klan in the 1980s and shook it until all that remained was a pile of old bedsheets.
***
The two civil rights organizations arranged for the young women to meet with an attorney from Faegre and Benson, a 100-year-old Minneapolis law firm. After hearing their stories, the attorneys spent the night drafting a letter to the school district and preparing legal papers in case the need for an emergency injunction arose.
Superintendent Carlson received the letter Friday morning. His treatment of Shelton and Lindstrom, it stated, violated the young women’s First and Fourteenth Amendment rights and if the school did not rescind these discriminatory actions by noon on Friday, a temporary restraining order would be filed. The letter insisted that the “District [must] make clear to Principal George and to all District staff that it is unlawful and a violation of the First Amendment for schools to censor student expression of their sexual orientation, gender identity, or support for lesbian, gay, bisexual and transgender (LGBT) rights."
A mediation session with all parties was immediately planned for Saturday with the hope of avoiding the Monday court date. The young women and their attorneys met with district leaders and US District Court Judge Susan Richards Nelson in her Minneapolis chambers. In one hour the young women had won their dispute. They would process together, holding hands, the length of the field house. And their friend Chelsea, who was also gay, could walk with her girlfriend; and any member of the Royal Court could march with anyone they liked, be it boyfriend, girlfriend, best friend, or great grandmother, were she still alive and ambulatory. Carlson also agreed to include Gay-Straight Alliance clubs and other student groups in future planning of events to make sure that all groups were included and no one was left out. Then Carlson and George took the young women out to lunch. During the meal Carlson reminisced about a couple he knew who had ostracized their lesbian daughter. He had been “horrified.”
On Monday evening, Shelton and Desiree, holding hands, dressed in tuxedos and pink ties with matching yellow roses in their lapels and no little trepidation, set foot on the red carpet that traversed the field house. To their relief, they were met with wild applause and cheers. They seemed to have the support of the entire school. Dozens stood. Cellphones flashed, recording the moment for posterity. “It felt amazing!” Shelton said later, although she admitted that she was too nervous to register exactly what was going on.
Had Carlson been converted? Had he gone to bed that night imagining that he would change the world when he woke? That he would meet with Barb Anderson, and other members of the Parent Action League carrying the flag of gender equality and bring them around with a stirring speech about the constitution? Or did he imagine that he had dodged a bullet? That all this fuss would go away and they could return to business as usual, balancing the concerns of certain outspoken homophobic board members with the needs of the students, as he had once characterized his own administrative style?
In fact, District 11 would never return to business as usual.
On April 25, the district received a memorandum from the Department of Justice and the Office of Civil Rights informing them that they were now the subject of an investigation in response to a complaint of harassment and discrimination on the basis of gender orientation and nonconformity to gender stereotypes. A month later, Carlson received a letter from the Southern Poverty Law Center and the National Center for Lesbian Rights informing them that they had been retained by a group of students who had been harassed because of their sexual orientation or gender presentation. The Southern Poverty Law Center investigation suggested that the district had taken only a few superficial steps to addressing the problem and remained a “hostile and alienating environment” for LGBT students. By failing to respond in a meaningful way, it was violating the law and the constitutional rights of the clients they were representing. The letter went on to invite the school board to meet with the attorneys to explore a settlement in order to avoid litigation. Otherwise,
Without prompt and meaningful action to remedy the current hostile environment and to compensate our clients for the harm caused by the District, we intend to file a federal lawsuit seeking full redress as well as injunctive relief going forward.
Carlson fired off a press release, cannily suggesting that since the plaintiffs were recommending training in gay and lesbian issues, rather than pursuing a lawsuit they should donate resources for training. As for the Sexual Orientation Curriculum Policy, Carlson believed it encouraged discussion of sexual orientation in a respectful manner … The policy is appropriate for the community … The district’s Sexual Orientation Curriculum Policy is constitutional. The Supreme Court has recognized that public school officials have a valid interest in taking neutral positions on matters of public controversy.
Regarding the students named in the lawsuit as bullying victims, Carlson explained that an outside law firm retained to investigate the cases had found that “the district’s response was prompt, reasonable and appropriate. Staff investigated and gave appropriate consequences, including suspension [my italics]. Due to data privacy laws, victims and their families are not always made aware of the discipline given to offenders.” In other words, the bullies had been punished but the victims and their parents had not heard about it because of the district’s respect for their privacy.
The claim of suspension is worth closer examination. One of the plaintiffs, referred to as D.M. in the lawsuit, was African American, the adopted child of a same-sex couple. Because his parents were gay, and he was small for his age, and he participated in gymnastics, a “girl’s sport,” he was subjected to the repertoire of homophobic gestures and speech previously described. The bullying began in fifth grade and escalated year by year. His fathers, Michael McGee and Jason Backes, made every effort to convince the school to protect him and train his classmates in civil behavior. They received the usual District 11 responses: that the situation would be investigated, that teachers and staff would look into it.
By seventh grade D.M.’s grades began to slip—prior to this he had been an honor roll student—and he had told his fathers that he did not want to return to Jackson Middle School. No intervention had been overlooked in the fathers’ efforts to correct the situation. They had recorded every incident, notifying the school, meeting with everyone from the classroom teacher to Superintendent Carlson. In nearly every case they were given the usual assurances followed by the usual inaction. They had watched their son’s sense of self-worth deteriorate before their very eyes and were unable to stop it.
In the beginning of eighth grade, as the aggression continued to escalate, a classmate called D.M. a “nigger.” D.M. told his parents, who told his school counselor. The offending student was immediately suspended (the suspension referred to by Carlson). It was necessary to suspend the student because district policy stated that acts of racial harassment would be punished by suspension. After that, the bullying continued, but the bully in question confined himself to gay slurs.
The day after Carlson’s press release, lawyers from the Southern Poverty Law Center, the National Center for Lesbian Rights, and Faegre & Benson, LLP, filed their lawsuit. It named as defendants, the Anoka-Hennepin School District, the school board, Superintendent Carlson, the principal of Anoka High School, the interim principal of Anoka Middle School for the Arts, and the principal of Jackson Middle School. The aim of litigation was not so much to award damages or to extract a confession of guilt but rather to change the offending system. A month into the trial, the judge asked the US Office of Civil Rights to join the discussion so that its complaint might also be resolved.
The Parent Action League struck back, commandeering a school board meeting in January. They trash-talked Dan Savage; warned of the risk of AIDS, which they continually referred to as GRIDS (gay-related immunity deficiency, a name proposed in 1982 before the true nature of AIDS was understood); misquoted biblical verses; promoted conversion therapy; misinterpreted a Supreme Court Case (Meyer v. Nebraska, a case about teaching German during World War I) as a decision supporting the Neutrality Policy; and made continued references to a covert gay agenda that was forcing good Christians “into the closet.” They demanded that conversion therapy be listed in school resources and that the school create a new division in support services for “students of faith, moral conviction, ex-homosexuals and ex-transgenders.” Confrontations such as this continued throughout the summer and fall and into the winter months.
In February an agreement was struck to replace the Sexual Orientation Curriculum Policy with a Respectful Learning Environment Policy. In March a consent decree was announced. It required that the district retain a consultant who was an expert on sex-based harassment to review the current bullying policies and procedures and develop a new and comprehensive plan to replace it, a plan that addressed gay bullying in the middle schools and high schools. The district was also to hire a Title IX coordinator, to insure that the new policies and procedures were compliant, and an expert consultant in mental health to help students who were victims of harassment. Student and faculty handbooks were to be rewritten so they included resources and procedures for LGBT students. The district was to implement an electronic system for keeping detailed records of every incident of harassment that took place and improve its system for responding. It also included an elaborate system of monitoring, evaluating, and, if necessary, reorganizing the antibullying infrastructure should it prove less than effective.
The estimated cost of the implementation was $500,000. The six plaintiffs were to receive $270,000 to divide among them.