Using the Courts to Create an Anti-Bullying Atmosphere at Schools

Jessica Felber v. Regents of the University of California

Bullying2First, I would like to express Kudos to my legal colleague, Ken Marcus, for the honor recently bestowed upon him by The Forward newspaper, as being one of the fifty most influential policy makers in the country. Ken is the founder and director of The Brandeis Center. www.Brandeiscenter.com Two years ago, Ken asked me to serve on the legal advisory board of the Center, a position which I still proudly hold. The Center is directed to protect the civil rights of students throughout the United States. Ken recognized my work representing Plaintiffs in the case filed in the United States District Court, for the Northern District of California, Jessica Felber v. Regents of the University of California.

The issue of protecting students’ rights on campus and in schools throughout America is an important issue and one that is dear to my heart. As a parent of two young children in school, I recognize the importance of having active and engaged school administrators who work effectively to stop school bullying, bigotry, harassment and discrimination, be it discrimination based on race, sex, religion or sexual orientation discrimination.

In this Blog, let me give one example of how an effective school dealt with the problem. We have all heard of Yale University, and we know that it is a world class institution. My oldest bother actually received his PhD in sociology from Yale, and I was fortunate enough to visit the Campus often during his tenure.

Yale, like many universities, has an active ‘Greek’ presence on campus featuring many Fraternities and Sororities. One of the Fraternities had a rather obnoxious (and illegal) practice. It seems that new pledges to the Fraternity, were required to chant, “No means yes, and yes means …”. One does not have to have a PhD in sociology or law to understand the offensive and dangerous quality of requiring male students to chant this on campus. Such an action, in my view, is violative of Title IX of the Civil Rights Act, is offensive and obnoxious to women students and is illegal. Fortunately, Yale, as a world class institution recognized that the actions of this Fraternity were offensive and violative of the law. The Fraternity was censored and punished.

Recently, The Office of Civil Rights of the Department of Education, entered into a “voluntary resolution agreement” to end the investigation of claims of discrimination against Yale on behalf of students complaining against that offensive Fraternity. The OCR worked their mandate to assure that an educational instution has an environment and culture in which all students feel safe and well supported.

Many people have asked me whether the court can be an effective tool in stopping school bullying and bigotry in the classroom, whether that bigotry arises from discrimination based on race, sex, national origin or sexual orientation.

Bullying1Recent decisions of the Ninth Circuit and other Federal courts clearly confirm that students who complain about hostile environments at their schools based on race, sex, or sexual orientation in that their school administration demonstrates “deliberate indifference” under Title IX and Title VI have actions available to them Montiero v. The Tempe Union H.S. Dist. (9th cir 1998) 158 F. 3d 1022, 1032- 1035; Flores v. Morgan Hill USD (9th Circuit 2003) 324 F. 3d 1130; Vance v. Spencer County Pub. School dist. (6th Cir. 200) 231 F. 3d. 253, 262 and Jones v. Indiana Area School district (W.D. Pa. 2005) 397 F. Supp 2nd. 628, 644-46. This line of cases followed the Supreme Court decision of Davis v. Monroe County Bd. of Education (1999) U.S. 629 649 which defined a “reasonable standard for the test of deliberate indifference” At least one Federal court has expressed that deliberate indifference is a fact-laden question for which bright lines are ill suited. Tesoria v. Syosset Central Sch. district (E.D.N.Y.) 2005) 382 F. Supp 2d 387 399.

In the case of Jessica Felber v. The Regents of the University of California, I argued at the Federal court that,
“…It is not denied that the content of the “checkpoint” demonstrations is hate speech equal in legal odiousness to use of the “N” word, or similar racist and sexist expressions. The Defendant does not deny that the entire MSA/SJP checkpoint presentation is a racist “passion play” of the worst sort which, like the notorious anti-Semitic performances of Oberammergau, Bavaria, portray Jews as blood thirsty and treacherous villains….” Oberammergau, James Shapiro (2000) at page ix.
However, unlike Oberammergau Passion Play, which is performed in a traditional stage setting, The Regents have allowed the MSA/SJP to present their racist performance in the middle of an important campus cross road, Sproul Plaza, and to include interaction confrontation and violence against students who, like these Plaintiffs, did not choose to buy a ticket in order to experience the performance.

The moral of this is that we must be vigilant to have schools which are free of bullying, and racism. And yes, the courts can be effective in stopping that bullying.

 

“If the thunder don’t get you then the lightning will.” Why this Grateful Dead lyric came to my mind during a particularly sad moment of my life and how I use it as a philosophy in my law practice.

Shurtliff.GratefulDead.Photo.eAs described in the history/bio section of my web site http://www.litigateforjustice.com/ I have been blessed to know and work with a number of really special people.  While I was in law school, Bill Walton and I were neighbors in San Diego, and to this day, we are still good friends.  Bill introduced me to Lawrence “Ramrod” Shurtliff, the legendary chief Roadie, and President of the Grateful Dead organization. Ramrod was really the heart and soul of the Grateful Dead.

In 1978, during a dinner at Bill’s house, I described to members of the Grateful Dead, including Jerry Garcia, Bobby Weir, Mickey Hart, and Ramrod, how impacted California public school music programs would become due to budget cuts connected to Proposition 13.  A few days later, unsolicited, an envelope came for me from the Grateful Dead office with a note from Ramrod.  He wrote,” ….Everyone was touched by what you spoke about the other night, let’s do something about it…”.  To my amazement, there was also a check for $10,000.00 in the envelope.  When I called Ramrod to ask about the check, he simply said, “There is a problem, go fix it.”  I was a young law student.  I now suddenly had a client, a problem, and a way to address the problem.  I had my marching orders from the Grateful Dead, and a check from the Rex Foundation, the Grateful Dead’s charitable arm.  Over the next few weeks, I was able to coordinate the purchase and distribution of hundreds of musical instruments which were distributed to public schools.

This episode began my friendship with Ramrod, which lasted over twenty five years until his death.  At one point in our friendship, after I had already been practicing law for about twenty years, Ramrod asked me to prepare trust and estate documents (i.e., wills and trust) for him and his wife Frances.  Since that is not an area of the law that is my specialty, I referred the matter to a colleague of mine.  Ramrod asked me to attend the meeting with the estate planning lawyer.  When the lawyer asked Ramrod who he wanted to serve as executor of his and his wife Frances’ estate, I was surprised and honored that I was asked to serve.

As these things often happen, just several months after preparing his estate plan, sadly, my good friend Ramrod was diagnosed with an aggressive cancer.  A number of colleagues and friends were summoned to the Northern California Hospital.  There, in the lounge, Bob Weir, Mickey Hart, Steve Parrish (another legendary roadie of the Dead), Bill Walton and I gathered to hear the very bad prognosis from the physician.  As the doctor told us about the various conditions and their consequences to our friend’s prognosis, I could not help but think about the lyric from the Grateful Dead song “The Wheel” that Mickey Hart, Bobbie Weir and Jerry Garcia had sung thousands of times.  As the doctor continued his descriptions about the cancer and its ravages on various organs of the body, I couldn’t help but think of the lyrics from “The Wheel,”  “…If the thunder don’t get you then the lightning will…”

Ramrod passed within a few days of that meeting.

I miss Ramrod and his wife Frances.  They were the embodiment of the values of friendship, kindness, compassion and consciousness that were part of the Grateful Dead scene.  Ramrod was fearless and straight up.

I sometimes think of the lyrics of “The Wheel” during my legal practice.  My clients often come to me during a “thunder and lightning” storm of their lives.  Sometimes, the thunder or lightning has already stricken them (i.e., they have been hurt, injured, ripped off, fired, or victimized).  In cases like that, I try to bring them back to where they were before the storm.  Sometimes, clients come to me during a storm, and I help them navigate their way through the thunder and lightning.

Sometimes as a lawyer, it is important to remember as well, the incredible mystery and consciousness of our universe. The lyrics of “The Wheel” help.