Monday, February 28, 2011

Enumerated List to be Dropped from Bully Bill Reporting Requirement

The Dallas Voice reports that the reporting requirement proposed by the "big" anti-bullying bills (HB 224, SB 245) will be amended so that the provision that school districts file annual reports on instances of bullying in enumerated categories will now only require a report - with the specifics to be determined by the Texas Education Commission (TEA).

(HB 224 has been filed in the House, SB 245 in the Senate. The bills are nearly identical. It is common practice to file the same legislation in both the House and the Senate. Doing so allows bills to be considered by both sides simultaneously which can speed the process of a bill becoming a law. Since the Texas Legislature only meets every other year for 140 days speed is crucial in passing any law.)

HB 224 (by Strama (D-Travis County)) currently would require districts to specify in their annual reports if instances of bullying were based on the real or perceived race, ethnicity, color, religion, gender, sexual orientation, national origin or disability of the victim. SB 245 (by Davis (D-Fort Worth)) requires the same enumerated report but adds gender identity and expression to the list. (Strama filed this same bill last session, also without gender identity and expression, but added it to the list of attributes in committee).

In addition to the reporting requirements both bills would require school staff, administrators, students and volunteers to attend training on how to identity and respond to bullying, would allow bullies to be transferred to different classrooms or campuses than their victims (currently only the victim may be transferred) and would allow administrators to address cyber-bullying under limited conditions.

Neither bill currently contains a provision prohibiting schools from discriminating against teachers or students on the basis of sexual orientation or gender identity and expression.

Lets face it, removing the enumerated list from the reporting requirement will make these good bills less good -- there is no getting around that. But (and it's an extremely ambivalent "but") the proposed change to these bills dramatically increases the chances of the legislature doing something to address the issue of bullying this session.

Let's, just for a second, pretend that instead of one bill in the House and one bill in the Senate that each did four things (training, transfers, cyber-bullying, reporting), we had four bills in the House and four bills in the Senate that each did one of those things. (Actually, bills that only tackle parts of this issue have been filed in both the House and Senate, such as Rep. Guillen's HB 24 which only addresses cyber-bullying and Sen. Whitmire's SB 205 which only covers the training requirement.) If 3 of those 4 bills (say... training, transfers and cyber-bullying) became law and the other one didn't it would be a major victory and would go a long way toward helping queer Texas school children. We would be upset the 4th one didn't pass, we would continue to fight for it, but getting 3 of the 4 through would be an accomplishment.

The situation at hand isn't even a case of a 3/4 victory since the reporting requirement will still be in the bill, albeit drastically and mournfully watered down. Plus, unlike a hypothetical situation where the reporting requirement was removed, we will not have to wait two years for the next legislative session to fight for an enumerated policy. By putting the decision of how exactly the reporting requirement will work on the TEA this bill would be granting the TEA what is called "rule-making authority".

Texas laws work on a three-tier system:
  • First and foremost is the state constitution; its authority supersedes any other state law (but must comply with federal law). In order for the constitution to be amended 2/3 of both the House and Senate must approve a proposed amendment to be placed on a statewide ballot and then a majority of voters must vote for it.
  • Next is statute and code, statute and code must comply with the state constitution (and federal law) but supersede all other state law. The Legislature may amend statute and code by a majority vote in both houses. The governor then has an opportunity to veto any proposed changes.
  • Finally, at the bottom of the totem pole, is rule. Rule is created by state agencies. In order to create rules the agency must be authorized to do so by statute or code. Rules must comply with the state constitution and statute and code (as well as federal law).
The law requires that, in creating rules, state agencies hold public hearings. If HB 224 or SB 245 becomes law the TEA could start that process as early as this summer. If that happens we will have an opportunity (and a responsibility) to attend those hearings, en masse, to demand that both sexual orientation and gender identity and expression be including on the required reports.

I suspect Equality Texas, which announced the proposed changes to the bills, is going to receive a lot of criticism about this. (Some of which is warranted, given that the bills are being weakened.) I hope, however, that people notice what didn't happen:

The two bills (HB 224 and SB 245) differed from each other by only 5 words - "and gender identity and expression". I spoke with a staffer in Strama's office a couple of months ago asking why Strama did not include those words in his bill this session (since he added them in committee last session). The staffer was a consummate professional, which means she would never make a statement about a bill that her boss hadn't already approved, but I got the distinct impression that Strama left those 5 words off because he thought his bill had a better chance without them.

Over and over again the queer community has seen the lobby organizations that claim to represent us all throw the transgender community under the bus when it became politically expedient. It would have been very easy for Equality Texas to have done the same in this situation. Instead, they worked with Sen. Davis to be sure she understood why her Senate companion needed to include those 5 words and they continued to work to educate Rep. Strama about why his bill needed to do the same.

In a way (a very strange, very conflicted way) I'm glad to see "sexual orientation" removed from HB 224. I don't want to fight for a bill unless I can fight alongside by trans brothers and sisters. Personally, if those 5 words aren't included I don't want the two words that protect me ("sexual orientation") included either.

HB 224 and SB 245 were never perfect, they're not even the best anti-bullying bills filed this session (see HB 1386). Removing the enumerated list from the reporting requirement takes these bills, which were always the middle ground, and makes them weaker. But... we are dealing with the lives of children here. If all that gets through this legislature (this very conservative, very Republican legislature) is a single section of these two bills we will have improved those lives.

It's not enough, it is so not enough, and we must fight for more... but right now, as you're reading this, there is a 14 year old queer kid who is contemplating suicide because his teachers don't know how to see the pain that he is in. If we can help that kid, and the thousands of others like him, have a school that is even a fraction more aware of his predicament we have to do it.

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