by Hans Bader
Should students be defined as bullies partly based on race? A confusingly-worded bill just introduced in Virginia’s legislature seemingly classifies students as bullies partly based on racial differences between “the aggressor” and the victim, such as a “real or perceived power imbalance between the aggressor or aggressors and victim, including on the basis of the actual or perceived race, color, national origin, sex, disability status, sexual orientation, gender identity, gender expression, ethnicity, religion, or other distinguishing characteristics of the victim.”
That language is found in HB 536, a bill introduced by Delegate Joshua Cole (D-Fredericksburg). It would add the language in italics to Virginia Code § 22.1-276.01, so that it reads:
“Bullying” means any aggressive and unwanted behavior that is intended to harm, intimidate, or humiliate the victim; involves a real or perceived power imbalance between the aggressor or aggressors and victim, including on the basis of the actual or perceived race, color, national origin, sex, disability status, sexual orientation, gender identity, gender expression, ethnicity, religion, or other distinguishing characteristics of the victim; and is repeated over time or causes severe emotional trauma.
If Virginia adopted such legislation, it would create legal risks for school systems. If schools enforce a race-conscious definition of bullying, which applies (or not) based on the “race…of the victim,” that could be deemed by the courts to violate the rights of students defined as bullies based on racial considerations. School systems could end up being sued under the Constitution’s equal protection clause, Title VI of the Civil Rights Act, and 42 U.S.C. 1981. Even rules designed to help historically-disadvantaged groups are subject to legal challenge when they classify students based on race or gender, as the Supreme Court made clear last year in striking down the race-conscious admissions policies of Harvard University and the University of North Carolina.
Schools are not supposed to consider students’ race or gender in discipline, and are not supposed to discipline someone based even partly on whether or not they belong to an historically disadvantaged race or gender. A federal appeals court struck down a decree against racial overrepresentation in school discipline — which it viewed as a discriminatory racial quota — even though the school system subject to it had a documented recent history of discrimination that the quota was intended to fix, which made considering race in school discipline more understandable in that school system than it would be in most Virginia school systems, which haven’t been found guilty of discrimination in many years. In that court ruling, People Who Care v. Rockford Board of Education, 111 F.3d 528, 537-38 (7th Cir. 1997), the federal appeals court wrote:
The decree forbids the school district to refer a higher percentage of minority students than of white students for discipline unless the district purges all “subjective” criteria from its disciplinary code. The decree requires this even though important disciplinary criteria (such as disrupting classes) are unavoidably judgmental and hence “subjective” within the sense of the decree, and even though the disparity in minority and white referrals is smaller in the Rockford school district than in the nation as a whole. This provision cannot stand…. Racial disciplinary quotas violate equity in its root sense. They entail either systematically overpunishing the innocent or systematically underpunishing the guilty. They place race at war with justice…. And they incidentally are inconsistent with another provision of the decree, which requires that discipline be administered without regard to race or ethnicity.
Schools usually are not supposed to consider the gender of the accused or the victim in discipline, either, even when the victim is female and the accused is male, where power imbalances often are perceived to exist. Doing so violates Title IX. That is illustrated by appeals court rulings such as Doe v. Columbia University, 831 F.3d 46 (2d Cir. 2016), which revived a male student’s Title IX lawsuit alleging he was suspended in part based on his sex after being accused of sexually assaulting a female student, and Sassaman v. Gamache (2009), which revived a lawsuit by a man whose gender was considered in deciding whether to discipline him for sexual harassment of a woman.
It should be noted that schools are perfectly free to punish all bullying on the basis of “race, color, national origin, sex, disability status, sexual orientation, gender identity, gender expression, ethnicity, religion.” That is just a ban on discriminatory bullying, which is perfectly legal under federal law, as the Supreme Court made clear in Wisconsin v. Mitchell (1993), which rejected a constitutional challenge to Wisconsin’s hate-crimes law. But punishing conduct based partly on the race or sex “of the victim,” and the power relationship that is perceived to exist in light of it and the race or sex of the perpetrator, is at odds with the court rulings discussed above, such as Doe v. Columbia University, 831 F.3d 46 (2d Cir. 2016), and People Who Care v. Rockford Board of Education (1997). The bill’s confusingly worded language seems to be aimed at doing the latter, not the former, making it problematic under federal law.
Hans Bader practices law in Washington, D.C.
