that's the key. it's innovation, investment in new technology, and it's pair know ya driven darwinian competition that ultimately leads to the changes that help consumers and competitors, and i hope you all keep that in mind as you are going forward because this is going to be the biggest decision you make, and i hope you make the right one. thank you, mr. chairman. ..???????????????

it includeassment that is not sexual in nature. instead it is based on sex stereotypes. for example, the conduct of a group of students who harass and intimidate a female student to discourage her participation in wrestling because they consider her athletic activity to be not feminine would constitute gender based harassment they girl who targets a female classmate for repeated humiliation and name-calling through electronic means, as school, names like a slut and for and things like that because her classmate is pregnant is engaged in gender

based harassment. these of the sort of intake's we get frequently at the national women's law center from parents are concerned about their children. agenda based harassment need not be perpetrated by boys were targeted at girls. students can be harassed by other students, by teachers, by coaches, school employees, their parties. it can involve the images that are posted on walls or through electronic means. comments can create a hostile environment. these are all core principles that have been developed over time as they have grappled with these issues. the office for civil rights has hopefully spelled out in guidance for education and institutions. as you heard earlier today, title number nine plays an important role in addressing harassment, and we really view bullying as a form of harassment when it rises to a certain level

the supreme court has recognized that title nine provides for a private right of action under which students may pursue claims for damages and for incentive relief to address harassments. you know, i raise this because i know that there has been some confusion over the standards purses' damages versus the standard for administrative enforcement or incentive relief. today it was explained that this distinction has been a long one, but the good news for students is that even though some courts around the country have interpreted the title nine standards for damages in ways that have really raised the bar for being able to us bring these cases, the standard for administrative enforcement and for interactive relief is whether school officials knew or should have known about the

harassment. this should have known standard applies also when individuals file a lawsuit seeking injunctive relief only. likewise, for enforcement action that has been brought by the administration, and these are standards that are closer to the legal protections for employees and the workplace. moreover, even the suit for damages, which has been talked about says only applies when the harassment does not involve an official school policy. as the purpose of the standard it is to ensure that the school is held liable for damages for its own act and not responding to harassment for third parties. so, for example, and since inverses university of colorado the tenth circuit held that the university had an official policy of delivering different

sexual harassments. so they did not actually have to show that actual notice a particular incidents of harassment. speaking in part to clarify what constitutes unlawful been debased harassment in the wake, around ten years ago the office for civil rights issued 2001 guidance that has been discussed today. that guidance it recognizes that conduct that is sufficiently severe from a persistent, or pervasive remains accessible under title nine. the office for civil rights also emphasizes that a harassment that rises to the level that denies this his ability to participate or benefit from the educational program and verifies the schools failed to respond to harassment of a student on the basis of the system's failure to conform to stereotyped notions of masculinity or femininity.

despite the 2001 sexual harassment guidance to new base harassment continues to pervade our schools and in some cases such conduct may have led to a particularly tragic consequences it was unclear whether educational institutions understood that the conduct that was referred to commonly in the media as bullying and buying schools as bullying included in some cases gender based bullying which could have implicated title mind. trying from this revised guidance we were pleased to see that in 2010 the department issued is new guidance reiterating from 2001 to providing a pedicles that allowed schools to really be able to see what the standards mean in practice.

does not imply a break with or expansion importantly in 2011 the office for civil rights also released additional guidance on peer to peer sexual violence. among other things that guidance supplemented the 2001 guidance and expanded upon the standards that apply for sexual violence. we have really been gratified to see some institutions change their standards even in the past month that some of them announced they would be implementing, for example, upon dense of evidence rather than the higher threshold that they had before. we saw the university of virginia made that. >> thank you. you're next.

>> thank you. i am the president and general counsel. a conservative civil rights organization. for four years in the reagan and bush of ministration i was in this or rest division. my duties included supervising the educational. in my written statement i focus on the issue of bullying and harassment on the basis of sexual orientation. i make two basic points. one is that title nine does not cover that kind of bullying and harassment. the second point i make is that this is not an area where the federal government involvement is likely to help. additional statues bullying in

this area would be a bad idea. we're going to hear a lot today about how damaging bullying and harassment can be to individual students. it can certainly be heartbreaking. we are also going to hear about how widespread is. the first point is not really disputed. nobody disputes that bullying and harassment can be a terrible thing. the second point, how widespread it is. i would say at the commission needs to take it with a grain of salt, the numbers you are given by interest groups and by federal bureaucracies who want to expand the jurisdiction, especially when the two are working together.

i also think that we have to bear in mind when we are looking at trends that there are changes in technology. you know, the internet has made it much easier to file complaints. they have also made the kinds of harassment we are talking about here more widespread. i think that is something to bear in mind when people are trying to lay the groundwork to say that the federal government has to get in here because it's a problem that is not being addressed. as i say, this is of very difficult area with a lot of difficult line drive that has to be done. you know, when does protected speech become unprotected speech. when does that become harassment? when does horizon become a threat? when does the threat become an actual, you know, physical

assault. these are difficult line drawing questions. i have heard nothing today from the administration representatives to suggest why the federal government is going to improve the way that this line drawing is done. i'm not going to, you know, repeat what i say in my written statements on that point. but i would like to focus on a little bit in my oral remarks here is why i actually think that the federal government involvement will make things worse. i think that the burden is on the federal government to show why the federal government is story to make it better. i don't think they can carry that burden. in addition, i think that there are a lot of reasons, and some of the commissioners have alluded to this to my wife federal government is actually going to make things worse. it is pointed be the 800-pound

gorilla. when the federal government gets involved this going to be pressure for them to have guidelines. these guidelines are going to end up creating not only for but in some cases a ceiling. it is going to encourage local schools not to be as proactive in this area as they should be. the guidelines will inevitably lead to speech codes and sensitivity training. it will coerce schools into zero tolerance policies. the involvement of the federal government makes it much easier for interest groups to get involved on both sides of the aisle. get involved and use that as the means for affecting policy in this area. you can see that by the interest that these hearings today have attracted. this is going to create a a

fact. as administrations change it will be pressure brought by interest groups to change the guidelines that have been put out. pass new or different laws, many regulations. local schools are going to be caught in this bind where they are afraid of getting sued if they do and if they don't. it's going to chill the kind of local involvement and local attention to these issues which i think everybody that i have heard so far to date agrees needs to happen. this is really its policy in this area. it is very odd that the gay rights groups should need to be reminded that government legislating morality, particularly the federal government alleges that the morality, it's just something that we ought to be very wary of. it wasn't very long ago with a

morality that was being legislated was aimed at gay rights or at case. now we are being asked to pass laws that a going to the get the federal government involved in saying what a fifth christian says it is or is not something that ought to be, you know, ought to attract the attention of the federal government. finally, i also think that we ought to be -- both sides ought to agree it is carried in this area to have the federal government making up lost so that they can go after behavior that they view as being immoral. i don't think that tall , i think everyone agrees that title nine is about sex discrimination. it is not about discrimination on the basis of sexual orientation. the federal government is being very aggressive in concocting a

legal theory that it is using to prosecute school districts. accomplish something that is not there in the statute. >> thank you very much. >> mr. chairman, members of the commission, i'm pleased to have the opportunity to appear before you today to discuss. appear violence and school bullying based on sexual orientation. a thank you for addressing this important matter. i am a professor of psychology at the university of california davis. as a social psychologist i have been conducting empirical research for more than 30 years. as detailed in mind was made, have published more than 100 scholarly papers and chapters on these and related topics in received numerous grants for my research. i am a fellow of the american

psychological association and the association for psychological science and testified on behalf of the american supply school association for congressional hearings on anti-gay violence. been invited to participate and present plans 1991 white house meeting on day crimes and recently convened by the national academy of sciences to prepare a report on the health of sexual, day, and bisexual people. these are detailed. my written statement details the findings of social science will there's -- research related to school violence. to put that research in context it also discusses current knowledge of sexual orientation and stigma. in my oral statement i will briefly summarize the material. sexual orientation is commonly used to refer to an enduring pattern of sexual romantic a pattern of males or females are both sexes. also used to refer to an individual's sense of identity, his or her patterns of behavior is expressing them, and his or her in the community of others

to share them. all the sexual orientation ranges along a continuum, it is usually discussed in terms of three categories. in terms lesbian and gay, commonly used. the mental health professions have long recognized that, such shoddy is in normal expression of human sexuality and there is no inherent linkage between sexual orientation and the person's mental health or ability to contribute to society and to lead a happy, healthy, and productive life. ..

to the orientation. thomas edge alladi remains stigmatized in the united state and such in the institutions of society and of individuals. large numbers of lesbian gay an bisexual people experienced harassment discrimination based on their sexual orientation and because of sexual orientation i not readily apparent in most social interactions virtually anyone can be a target of anti-gang violence or harassmen regardless of their actual orientation. children and adolescents and adults to behavior or per guaranteed to be here is appearance are frequently victimized often because the perpetrators have assumed the gender nonconformities on a marker for homosexuality or bisexuality. in addition gender nonconformit is itself stigmatized and some people are targeted entire yearly because of their gender. although there's no linkage between sexual orientation and mental health research indicate experiencing stigma related victimization as stressful and can lead to psychological and

physical problems of those to the extent of heterosexuals are subjected to additional stress beyond what the heterosexual population normally experience is including stress resulting from stigma they may as a group manifest poor or overall physical and psychological health. with this general discussion as background return to the main focus of today's briefing, violence and victimization base on sexual orientation are widespread in school settings. the problem may be more expensive today than in the pas because contemporary sexual minority youth appeared to be recognizing sexual orientation and coming out at earlier ages than was the case in previous generations. been identified as gay, lesbian or bisexual poses risks to students in middle and high school where negative attitudes toward homosexuality and sexual minorities are common. experiencing bleeding and victimization based on sexual orientation is associated with mental health problems includin depression, anxiety izzie and suicidal thoughts. it also is often associated wit truancy and poor school performance substance use and other risk beavers. although bullying and

victimization are likely to hav negative consequences for all students to experience being targeted because one's sexual orientation is associated with more problems and greater distress and is experiencing bleeding or harassment on related to one's identity. the psychological effects of anti-gang bullying and dictum a station can last long after students the high school. institutional practices and policies may help reduce your victimization based on sexual orientation and mitigate its negative impact when it occurs. research points to lowercase three promising strategies firs having antibullying and nondiscrimination policies that explicitly include sexual gende minority use it to reduce anti-gang behavior among students increased ceilings of states to discuss safety and create safer schools. second schools and teachers and staff are trying to stop and prevent harassment and victimization of the minority youth are likely to provide a safer environment for those i a

focusing on your violence and sexual orientation was some of the research in my written statement also examine the experience of gender minorities that is transgendered people an other individuals whose tender expression doesn't conform to the cultural norms. gender minority youth some are also lesbian gay or bisexual routinely experience harassment and violence and they are likel to benefit from a policy of intervention to protect sexual minority youth a comprehensive approach the problem of the victimization and schools will necessarily include attention t their specific needs as well. thank you. >> thank you. professor? >> good morning mr. chairman an members of the commission. i am a professor of clinical medical sciences at columbia university school of public health. my background is in psychiatric and social psychology. that is i study patterns and causes of mental disorder and mental health problems particularly as they relate to

social factors. i submitted a report for the record that is in my oral testimony and includes references to the research as well as my curriculum data. in my testimony today i will discuss three issues. the nature of the anti-gang stigma and how it forms threats for sexual minority. the sexual minority youth to stress related peer-to-peer violence and bleeding and the effect of such stress on mental health and well-being. the stigma is a function of having an attribute that convey the valued social identity in the particular social context. the related concept prejudice refers to the negative attitude and actions that society as a whole or individuals take against a stigmatized group member. for example, the discriminatory acts and anti-gang violence or expressions of stigma. i have developed a theory of

minority threads that state whe compared with heterosexuals, stigma, prejudice to access and as a result of increasing prevalence of mental disorders and other adverse health outcomes. stress can be defined as any condition that requires adaptation. researchers have shown stress - the impacts a multitude of health outcomes both mental and physical well-being. in addition to stress all peopl experience, the people are exposed to unique added stress. i have referred to these as minority stress. minority stress sexual minorities because they require adaptation to an inhospitable social environment. exposed to the threat is chroni in that it is attached to the enduring persistent social structures. exposure to this minority stres is a risk for mental disorders

and other adverse outcomes. other general causal relationships are difficult to prove public health research results from studies of sexual minority youth provide a solid and irrefutable support for the minority showing that social stress resulting from stigma an prejudice against expos them to the unique stress that in turn cause health problems. it has been shown in the numero studies that sexual minority individuals, especially youth have more stressful experiences than sexual peers. results in the social minority youth are abandoned and overwhelming in their evidence. indeed, of the numerous studies conducted many with large the samples conducted in the united states, canada and other nation i know what not one study that shows significant contradictory evidence.

gay youth at home, at school an in the community at large significantly more frequently than their heterosexual peers experience adverse events. at school, sexual minority yout experience bleeding including physical assault, being injured threatened and harassed, having their property stolen or damaged , out of school sexual minorities are more often victims of violence, physical and sexual abuse, verbal and physical sexual harassment and forced sex and dating violence. studies have also shown unlike other minority groups, rejectio can occur at home and anti-gang evens can be pritchard to perpetrated by family members and youth. it is important to note that th stress related stigma has a symbolic meaning even a scene during the minor instances such as being called derogatory name

can be damaging because of the cultural meaning and creates a pain beyond a seemingly long magnitude. in the context of school clement , minor experiences especially when chronic can cut the entire environment for the sexual minority youth sending the message of protection and sustained. this message is exacerbated whe it has been found to be the cas teachers and school personnel and more instances of such harassment such as name calling and joining the perpetrator in rejecting the sexual minority youth and sending a message tha the gay youths are to be scorned . studies of the assessment of th outcomes of to provide conclusive evidence of the depopulation including the yout of higher prevalence of the disorders and adverse health outcomes compared with heterosexuals. the gate populations are about

1.5 to three times as many disorders as heterosexuals including mood, anxiety and substance disorder and more tha twice as likely to have suicide affiliation. against minorities does comedy people individually as well as gay communities as a group moun coping efforts that build resources that may cover all stress. research shows coping and socia support can reduce the adverse effect of stress, health outcomes. in the context of the minority stress, coping and social support must have an affirmativ function supporting the person as a gay person. for these reasons and because families and other community institutions such as the church are not always reporting and sometimes rejecting and even harmful it is important for schools and community organizations to provide sexual minority youth with resources t counter a minority stress. many studies and using a variet

of methods have shown when families, friends and school environments are supported for sexual minorities that otherwis observed the stress on health and school performance draw significantly. overwhelming observations on health and academic performance of comes and ameliorate it with the coping and social support have many schools and governments and non-governmenta organizations to create supported services to sexual minority students. studies in the effectiveness of such programs spend over a decade now. the have been conducted in different states and locales an using a variety of methods -- >> thank you. semidey show that such programs have been effective in improvin dating violence and improving the health and educational outcomes of sexual minority. >> thank you, professor. >> i am the director of litigation for the institute an

i've spent the better part of a decade both suing and defending government entities in the area of first amendment including a free speech and religious liberty issue. the liberty institute like othe organizations such as the aclu seeks to protect the rights of students to express what are sometimes unpopular views at school, even views that reflect particular religious sentiment. decades ago, the student speech rights were much different. we have students who wanted to protest the vietnam war matt an military friendly towns were wearing black armbands to schoo and had to take their case to the supreme court to ensure the right to free speech. we have students in the south who were wearing freedom button to protest the desegregation, not a very popular stand for them to take the time to read the had to take their case to the courthouse, too in order to

prevail and ensure the have the right to where the freedom buttons and in the middle of world war ii, there were too elementary school children who did not want to say the pledge of allegiance. they want to express their patriotism and other ways. a day, too won the right. these early victories have led to a body clearly established law that protect students, free speech rights, while they are a school specifically as relevant to this particular issue, the religious viewpoint or the viewpoints that students may express. the case law is very clearly established. there has been no wavering for more than half a century the students must be free from the viewpoint discrimination perpetrated by the schools. unfortunately, the schools have not always responded in the cas law positively, and that has le to continuing conflict of schools engaging in sort of roving censorship of religious

speech. some examples i would like to share, and these are not limite to any particular faith it seem that students of all faiths hav had their troubles recently being invoking a law that have been hard fought and won by and our group and the aclu and others. for example there was a student in muskogee oklahoma who wanted to wear her head covering that is consistent with her muslim faith, and it took litigation t enforce her clearly established law to make sure that she could continue to wear this at school. you have little kids who wanted to hand out candy canes to thei classmates, not causing a major problem but those candy canes had to be confiscated by the school because they were to get dangerous for all those other kids to see because they have attached to them a religious message about the candy cane. jesus pencils being ripped out

of kids' hands will be a standing in line after school outside the school building to get on the school bus because this type of message was not going to be tolerated. it is a lot of intimidation and harassment that goes on in schools unfortunately a lot of it seems to be directed at religious students, students expressing their religious fait and attempts by the government roving sensors to ban that speech. it's quite unfortunate this sor of a ticket's going on and if h will read the papers you will notice many of the cases we are deciding on the current example are within the past few years. that seems to be a growing tren of this roving a censorship of the religious sentiment at school. another example, might come again, it's not a matter of one particular faith. it was a school district in texas recently that the aclu ha a case on that the kid wanted t

wear his hair lank fielder than the dress code allowed because of his native american faith. well, that law has been clearly established for many years in the fifth circuit to the school district continued to fight to try to ban him from wearing his hair so this is a very sensitiv issue and a very litigious issu that's going on which is totall unnecessary because the law has been like i said established since world war ii. one of the outgrowths of the sort of call there has been a call for training students and trying to persuade them to hold a particular views that runs to the korean conflict with clearl established law from the 1943 west virginia versus barnett case ig with a two before dealing with the pledge of allegiance, justice jackson and the marvelous opinion really expressed i think the sentiment that most americans agree with which is that our school districts are not there to teac and in green and students the

particular orthodoxy. they are not to decide what is right and wrong on questions of social importance. those should be left to parents and other institutions and that has been the law since 1943. as a matter of fact, i think th supreme court said it best in tinker forces des moines and i would like to read the quote because it is really a magnificent quote. it warrants against this type o indoctrination to try to teach students of a particular -- wha ever it is, whenever view it is this happens to be the homosexual rights issue but it could be on any issue. any departure from absolute regimentation may cause trouble in variation from the majority opinion may inspire fear and spoken word in class and lunch room on the campus that deviate from the views of another perso may start an argument or cause disturbance. but our constitution says we

must take this risk, and our history says that it's this sor of hazardous freedom, this kind of openness that is the basis o the national strength and independence and the vigor of americans who grow up and live in this relatively permissive often society. freedom to speak among our students has been a clearly established right for many decades to the effects a broad range of issues from students fighting against racial desegregation, segregation rather come students protesting the vietnam war or even to the students protesting military actions and other perks of the globe. these rights are very precious because as a supreme court said we have to be careful lest we strangle the free mind at its source of our students obviousl the most impressionable and tha impression ability is greatly impacted by the power balance o school officials.

>> thank you. >> thank you very much for the opportunity to testify today. my name is eliza and i am the director of the day was be an administrative network founded in 1990 by a group of educators parents and students, it was an now the leading national education focused on the lt bet issues on kids through k-12 and committed to partnering with school districts across the nation to promote school cultur of respect and safe schools for all students. i want to begin by introducing you to joey a fairly typical high school junior except in on respect, joey's day. until he revealed this, he was popular kid and never thought twice about his safety of school . after he came out, joey steven scully experienced changed dramatically. he was harassed daily come a problem that escalated to the moment when another student threatened jolie with a knife.

rather to intervene, a school administrator response was to encourage jolie to act less gay and to suggest the bullying tha he experienced is something tha he deserved. on joey's behalf, i think you for shedding light on this important issue but i must also urge you to act. visible or invisible, lt btu fo in every district in this country and are drawn from ever constituency that you are in power to protect. the need your help to cut through the malaise you often surround this issue. students this bullying, harassment and violence that ca deprive them of equal the educational opportunities, undermine their individual well-being and keep them from achieving their full potential. in 2009 nationals will climate survey, nearly nine out of ten lgbt students reportedly given verbally, physically or sexuall harassed in the past year at school because of their sexual

orientation or gender identity. one in three skit school becaus they were simply too afraid to go, and one had been physically assaulted. the violence do less well academically are less likely to plan to graduate from high school. rajdeep is to lgbt to the more likely to engage in a heater that put them at risk. because of the discrimination and violence they suffer. these statistics are grim. equally disheartening is the fact the situation has not yet sparked the response that requires. only 18% of lgbt students repor that their school explicitly protect them on the basis of sexual orientation or gender identity, and the vast majority of lgbt students report that when a member of the school staff witnesses antilgbt behavior, they do little or nothing about it. a court challenge we face is th fact that bullying complicates

adult response. plater out of the fear of controversy, failure to recognize the seriousness of th behavior or active in differenc to the fate of the students involved adults charged with th education and the care of your children are not consistently living up to their responsibilities. federal leadership is necessary to make the basic level of the extent of the responsibilities crystal clear and assure those of you controversy a backlash that they are doing the right thing. we are grateful to the office o civil rights, the department of education and the department of justice for their commitment to exercise what authority they have under title mine to protec lgbt students, but this statute only covers some of the serious challenges that the lgbt students face. research consistently shows the policies that most effectively address antilgbt behavior in ou schools actually name the problem by specifically

enumerated sexual orientation and gender identity as categories included within the commitment to protect all students. lgbt youth whose schools have such policies are less likely t be victimized and more likely t say school staff intervened whe the witness and i lgbt be here. in the recent months, school districts in oklahoma city, jackson mississippi, dallas and park city, utah have adopted in memory the policies that includ sexual orientation and gender identity among their protections . just last month the state of arkansas passed an animated and i believe in law. the 11th state to do so. but state law and a district policies create only a patchwor quilt of protection for lgbt students to read as a baseline matter of safety, we need to establish a national floor of protection upon which states an districts to rebuild as the

national issue of equity we als need nondiscrimination protection for some of our nation's most vulnerable students. i encourage the commission to support the improvement at, a measure introduced in congress with a bipartisan support in both chambers and a broad base support among education and youth development, health, religious and civil rights organizations and the student nondiscrimination act which the standard on the protections to students on the basis of the sexual orientation. you have heard testimony that t extend the protections would somehow compromise the first amendment rights of other students but strongly held personal belief regarding homosexuality. as an educator and as a parent, myself, i am firmly committed t the principal of respectful debate and dialogue as part of good education. but let me be very clear the word stifel are not part of any

religious creed and or assault and crime. to those in need to be to deny the need and attack the enumeration i challenge them to provide data to support their argument today for every jackso mississippi and park city to talk there are places where bullying prevention efforts to not explicitly protect all students and more the consequences are real. jolie knows this all too well. his family had to move across the state lines to find a schoo where he would be treated with the same respect as every other student. fortunately, his family had the means to find that seat school. many parents don't, nor should any parents have to make this choice. every child in this nation deserves a school environment where they are safe and respected. each deserves the same chance t excel, and the need your help t have the equal opportunity. thank you. >> thank you. professor? >> op chairman and members of the committee, thanks for havin

me here. back at the civil rights commission. a number of years ago is the director of the public affairs office here so it's nice to be back. although a different date than we had then had on vermont. i'm not going to address the particular topic of this panel, but the broader question of federal authority generally in the pier on pure harassment tha is the broad purpose of the hearing because i think we have greatly misunderstood the will of the federal government here. in fact the misunderstanding of federal authority is evident from the opening sentence of your own briefing context summary which states acts of bullying, violence and harassment are reportedly pervasive in the case through 1 schools. even if it is true and with all due respect that statement does not begin to establish the necessary price for federal intervention. federal intervention is warranted under the 14th amendment only to remedy the violation of the amendment whic seeks to the state action, not private conduct.

congress lawmaking power under section five of that amendment extends only to enforcing the provisions of the 14th amendmen and when the congress seems to act proactively to prevent the to prevent the harm that must b with the conference and proportionality between the injury to prevent and and the means adopted to that end and remember under the 14th amendment what we are talking about steve action, the private actors so federal intervention might be warranted if the assertedly pervasive acts of bullying, violence and harassment were being perpetrated were facilitated by the school district itself and the intervention was designed t remedy that unconstitutional state action. yet, even if that was the case and meter the commissions briefing summary nor the recent efforts by the department of education that led to it appear to be aimed at that concern. the prior federal intervention being appropriated by the supreme court indicates a much higher threshold for the congress itself much less on elected administrative agencies can intrude on the core state

powers such as how we finished the local school districts. the voting rights act of 65 for example spoke of the violations that had been insisting for decades. they've been banished in light of those discriminations that had been in place for nearly a century. the court also approved using strong and remedial preventativ measures when necessary to respond to the widespread deprivation of constitutional rights that was going on by though government officials itself. none of those preconditions are evident here. there's no evidence they've engaged in widespread and persistent the provision of the constitutional rights. either through their own harassment or in the manner in which they have responded to th student on student harassment. there's no on the part of schools even if it exists as long standing indeed the call the letter sent last october th department of education to the school districts across the nation demonstrates just the

opposite and that what the assistant secretary priest the department of education and local school districts for the step the taken to reduce the waiting in schools, describing the efforts of the movement tha reflect schools appreciation of their important responsibility to maintain a safe environment for all students not impossible to tease out that complement a picture, the kind of this regar of the constitutional rights by the officials themselves that i a necessary precondition of federal intervention in the 14t amendment. we are witnessing a return here but the problem of education fo their claims a number of federa statutes enacted pursuant to th spending goals fully authorized federal intervention here. power under the spending goals isn't limited by its other powers it may not use expending powers of pretext to accomplish indirectly what cannot do directly. the limits on congressional regulatory authority under the 14th amendment are therefore

quite germane to the issues before us today and the contras cannot accomplish indirectly to the federal funding then it is even more clearly the case that the administrative agency canno impose new conditions on the receipt of the federal funding that are not authorized by the law. the department seems to claim such authority when it sites against the case from 1998. but i think it is a misreading in that case. thus the departments claim liability standards in the davi case do not limit the term of its funding contract as highly misleading and that. the latitude given to the agenc has narrowed, the deviation between the department colleagu letter last october and the interpretation of the relevant civil rights statutes are large. the department may not think th supreme court interpretation of the statutes is protected enoug for the rights it issued here but it had no basis to fundamentally alter the meaning of those statutes in the name o enforcing them.

it should be clear none of the statutes cited in that letter were passed with a child on child playground bully and even in mind. much less out of concern about the flagrant violations of constitutional rights by the school officials in dealing wit the bullying. that alone makes it extremely problematic to extend the statutes to cover the child on child conduct here. i see that my time is running out so let me skip to the end. you know, the department discussion about a specific kin of conduct that would trigger remedial action is somewhat erroneous. harnessing the conduct may take many forms including verbal names, name-calling, graphic statements, etc.. but the supreme court has expressly disclaimed such conduct as a trigger for the school district liabilities. the courts must bear in mind th schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable amon adults noted in the davis case.

expressed understandable you're going to have those kind of insults and banter and teasing etc. the damages are not available for those acts, even if the comments are differences in gender under title aye kyl six. rather in the context of the school on school, student on student harassment the damages are available only when the behavior is so severe, pervasiv and objectively offensive that it denies equal access to the education and the deliberate indifference by the school district must be systemic not just respect individual instances. in the and i think it's important for us to recognize i our federal system there are some things left not just primarily but exclusively to state and local control. this is one of those things. it's time to with the school districts, principals and teachers to their jobs without being second guessed by folks i washington, d.c. often thousand miles away. only then can we to get into of the experiment our federal system provides and maybe they

can come up with solutions yet envisioned here in washington, d.c.. >> thank you. we are not going to open to questions. i remind the commissioners keep your questions concise. if possible, indicate what panelist you are asking the question to and then we will have enough time for follow-ups hopefully. commissioner yaki and gaziano. 66 what we just heard, but i want to go back to something that i think was best addressed to mr. am i year. i think one of the most, to be one of the most important factors in determining sort of why we are having this hearing and why i believe we need specific federal legislation protecting the lgbt youth has t

do with the harm associated wit this kind of bullying behavior to the individuals in this grouping. could you elaborate a little bi more about this susceptibility and the vulnerability and especially young people in the lgbt category who in terms of bullying and this kind of conduct it's important to draw out why it is the protection is necessary in these instances? >> many survey studies have looking at especially middle an high school boys and girls have found that those who are lesbian , gay or bisexual or those who have a history of same-sex attraction and behavio often appear to be not functioning as well, at least o

average and many are functionin well but on average they look like they are doing worse than many of the other kids, and the often manifest higher levels of depressive symptoms of anxiety, they miss class more often, the skip school come the often engage in risky behavior, and that was one pattern that was observed in research but then when they started asking about the kids experiences with the victimization and harassment in the school setting it turned ou that helped explain what a lot of the disparities. and so it seems that the experience being targeted for harassment and violence in the school setting leaves kids to have more psychological problem and to be afraid of school to perceive it as an unsafe place, and this often leads them to engage in more theaters that ar going to be detrimental to thei own well-being. it also appears to be the case that when questions have been

asked about whether that teasin and harassment and violence wer specifically targeted at them because they were received by someone else to be lesbian, gay or bisexual, that is associated with a greater negative impact than other what might be called a routine teasing and harassmen and violence that isn't based o a particular aspect of the child 's identity. >> i think it is important that we are not talking about the vulnerability that the child ha coming in. we are talking about a reaction that the child has to the environment that it is not as characterized as something abou teasing and saying things. this is a sevier -- i'm not saying this is for every single child who is gay. many of them are not out and nobody knows about it but when child or a new phase out or people identify him or her as being lgbt, they suffer from persistent chronic day in and

day out victimization and think from the stress perspective require immense adaptation they are to sustain themselves in that environment. we have had adults tell us in the recent experiences that happened to them 20 years prior to this they still remember freshly about not being able to walk to school, having to chang their route, having to people t walk different times of other children, missing a class, missing schools, so this isn't minor events or freedom of speech. and this is about making the environment complete the tolerable for these kids and that is why they suffer from these types of outcomes that i have described before. i just want to have one thing that too of the panelists said there isn't sufficient evidence and i think that is something that i strongly disagree with. there are many studies that hav

looked at accumulation of studies, that is the look at what are the trends that showed the overcome any kind of problems in terms of implementation. other studies use their ability that is they represent the population of students come and if the studies show as i said before, incredibly strong evidence for number one, the experience stress i described and never to, the evidence of the outcomes that come out of this as well as the evidence fo the mediating as we call it als experiences that is those experiences are responsible for those outcomes. estimate the chair recognizes the commissioner. >> thank you mr. chairman. this has been very informative. and i also thank the previous panel however they didn't answe the two questions i posed to them, and pursuant to the testimony of professor eastman, i am curious as to the extent o

the provisions of civil rights based on a protected class, perpetrated by his school districts that would necessaril engender federal level but or federal jurisdiction. and to that extent i would repeat my question and would like to know if any of you have an answer to when there's been reliable data collected either the approve the education, justice or any other entity has to the number of complaints of protected class harassment, whe that tracking began, with the number was when the tracking began, and what the number is now in terms of, again, deprivation of civil rights based on a protected class status related to harassment. does anyone have such data or know where we can find the data because we have the copious amounts of information in advance of this hearing from a number of people, and we appreciate that, but in going

through the data we haven't bee able to access it. >> can we get an answer? any panelists? >> thank you. >> commissioner meyer aaberg? >> thank you, mr. chair. dr. meyer, i have next to me approximately 3,000 pages of recent reports, peer review journal articles and book chapters which are already in the record as preceding and to which you have referred to indirectly these documents examine a range of issues related to the overall mental health of the lgbt population, the pervasiveness and the nuanced problems associated wit the peer-to-peer student violence, directed the central minority youth so many short an negative outcomes suffered by the targeted. to which you've testified. they come from institutions

including harvard medical schoo for the university, ucla, uc-davis and many other reputable institutions. do you have an overall comment you can make to this commission about this body of scholarship and the way we should give this scholarship in our deliberation? >> yes, i have over 8,000 pages the preferences i've provided a well as the articles i could identify are published in the per peer review journals it isn't easy to put an article ou there after it's been reviewed by an editor and other reviewer who are not necessarily friendl to the author. those articles went through ver severe critical review.

in my mind, having reviewed man of those articles in particular in the area of youth the evidence is overwhelming on eac of the three elements required to show causal relationships between the environment and som kind of health outcomes and the are number one, you have to sho the group in this case sexual minority youth experienced more number two, the experience more of the disorder is purported to be caused by the stress, and number three, that these are -- the reason for the increase in the rate of the disorder or those stressors. in this particular evidence, we have very, very strong evidence for each of those three elements , as i said before, using a variety of methods and examples committee for a lady o analytical approaches, and for

many institutions and investigators in many different places. >> the chair recognizes the commissioner. >> i want to thank all of you because our time is limited i will direct my question to the former dean eastman because i wanted you to elaborate on usin a mix sample from the recent letter to your colleagues to eliminate the point you made that the use of federal funding cannot be used as a pretext to prevent new legal standards. we heard from assistant secretary ali the only use funding or their power for sort of procedural issues and i woul certainly concede i think we al would concede that the federal government could potentially require data to be submitted to

show that they are actually living up to the standards of the civil rights law. but the example that i would like you to applaud is on april 4th the office of civil rights sent a letter to college and universities seeming to insist that they have a preponderance of the record, preponderant of the evidence standard in student sexual harassment disciplinary proceedings. the only argument i could see i the ocr leaders is this is the standard in title vii. to me it is profoundly troublin that they would borrow that standard where discovery is available, an employer has control over the supervisors to the university context where th students don't even have a righ to know who accused them, don't have a right to see the statements, don't have a right of discovery, but my question t you is does the ocr, regardless of who was right, whether it is good or bad, does ocr have the

authority to read title ix as requiring colleges and universities, or is there any authority that ocr has to require colleges and universities to apply a preponderance of the evidence standard in student sexual harassment or rape allegations? >> did not believe so, and i should clarify as well that i a here in my own capacity and not the former dean of the chapman university. we don't always speak with the same voice and in the universit in sure many involving the university's. >> no, they don't. and the federal government generally is not supposed to be intruding on local decisions unless they rise to a certain level that is the proportionality that comes unde the 14th amendment and the cour has also been very clear we can't use the spending power to accomplish things and we don't have other authority to accomplish but ocr seems to be doing is using the conditions o

spending in an effort to obtain a regulatory regime that they could not do directly. the congress itself could not d directly much less ocr. now i will give you another mix sample from last october. the standard that the supreme court set out in the davis versus monroe county case in 1999, it is delivered in different. intentional conduct by the school officials themselves too that to a hostile the environment. that's the only time when it rises to the level of the federal actionable conduct. the department of education letter says schools are responsible for addressing harassing incidents about which it knows and acknowledges even lower than the deliberate indifference or reasonably should have known that is a standard that the supreme court expressed, expressly rejected i the davis case that that would adopt a somewhat negligent standard for school officials.

and in rejecting that it said there should be a strong presumption in favor of deference to the school distric on how they respond to any of these kind of harassing conduct is. remember most of the conduct re cross is from the speech to the physical violence is already actionable under the state law and what have you. the notion that is sufficient t rice to the level of federal intervention with is rejected b the supreme court and another significant case united states versus morrison so i think what the department here is doing is expanding through a spending hook a regulatory regime congress wouldn't have authorit to pass on its own. estimate and would ask a question of what the commissioner harriet, commissioner yaki and titus. before i ask my question i just want to ask members of the stuf and commissioners on the stage as much as possible to try to limit your movement. it's a little distracting and i is important for us to stay up here and not direct questions t the panel on lesson this open forum. although i know folks will have to get up at some point in

understand that if you could do that with the least amount of disruption would be appreciated. professor, you mentioned in you comments, and sunday, that you did not want to see an expansio of coverage for the protection for the lgbt if i understand yo correctly because you didn't want to see what saw occurring. but isn't it true that he could make that with salles argument for any effort to expand the protected class is in the past whether it was race, national origin, disability status, and should that be the standard by which we decide whether or not we are going to protect our citizens and residents? >> i think that it is when to depend on the specific situation . let me take the most dramatic example. that would be racial discrimination. there you have in the 50 years ago the situation where school systems and state governments

were themselves deliberately discriminating on the basis of race. they were not going to change that policy abbas said the intervention of the federal government. and as it was developing was also very unlikely that there was going to be very much back-and-forth once the federal government intervened and said you cannot engage in racial discrimination. that's very different in the situation now. you don't have a situation now where school districts are deliberately harassing or bullying students on the basis of sexual orientation. the problem is one of student o a student bullying and harassment, and there has been no showing here today that

school districts are systematically and interested o not supportive of stopping that kind of bullying and harassment. the problem instead is one of line drawing. as i discussed in my statement and as has been discussed by th panel, that kind of nuanced lin drawing is something we're reasonable people can differ, and where the people are going to draw the line differently depending on the local circumstances. and getting the federal government involved in saying that no, this is where here are our guidelines, here's where yo should draw the line, and one administration, predictably would be a source of controvers and would likely be changed whe is a liberal democratic administration is replaced by a conservative republican one.

so i think that the whistle danger which is only one of the problems i have identified in this area for why the federal government shouldn't get involved and would actually be on helpful if it gets involved is a much more significant problem in this area than the school desegregation context. >> i will reserve my follow-up question if we have time again was commissioner harriet to please ask a question. >> i'm not sure anyone is going to be about to answer my question, but you are probably my best shot on this one. the emphasis at the department' policy is on training and not s much punishment but kind of surprised me when i looked at the letter, the colleague lette repeatedly says punishing bullies is not enough, that there is a need to train. i understand that they provide some of that training, is that right? >> in different parts of the

country the professional development work was the school staff, as we've done that for the entire district in the city of rochester and other places. >> the resource allocation the interests become a kind of training in such you provide it's like a daylong program and are you talking to teachers, students? >> i'm happy to talk that the training work on the other hand that is actually not the reques that we have for action. we do not seek that level of what we ask for in terms of the state school improvement act an nondiscrimination protection is regarding taking a standard tha has been developed in a laboratory in the states to which my colleague referred and which is having a solid tory effect on the health and well-being of young people who are experiencing by promoting -- >> and asking whether you provide that training and what

kind of training is to provide. to the districts across the country and the have resulted i fact in higher rates of intervention and the kind of behavior that currently, young people and we are very proud. >> in general, we leverage private resources to make thing available. we recognize -- >> you sometimes charge -- >> i really feel like you are saying schools pay for resource that help them do a better job in degette times -- >> we are going to move on to another question. >> i appreciate the right to sa i have said yes, we do and on occasion charge but on the othe hand i would also point out the thing federal action would do i to set a floor of protection through policy language that ha been developed in the state's and is having a beneficial effect and we the district move

on to the next level of implementation appropriate to their local area. they would then be responsible for reporting on the impact of their policy it is the action where the federal leadership could have a beneficial effect for young people who are suffering today. thank you. >> we will ask members of the body into please turn off your cellphone. they've gone off several times. please, do that if you haven't already done so. the chair recognizes commissioner yaki. >> [inaudible] >> okay, commissioner titus. >> we have heard evidence from different ones of you in on the previous panel that technical assistance and teacher training developing, and i believe in policies and schools have all helped to lower the rate of bullying and the particular situations. most of the testimony though ha focused on what we do after the fact, after bullying or harassment occurs how we do wit the situation. i would like to take a step bac if you would help me.

mr. clay stopped at the notion that the fiscal evidence compiled and presented by the top notch social scientists suggest that this is getting to be a more serious problem by saying maybe this technological development allows more people to report it. i don't really think that is th case. i think it is an increasing problem, so i would like to tal about some of the societal conditions that have led to thi increase because i believe they are out there. maybe ms. bayrd can address that . >> in the recent years as the lgbt in this country is become more visible we have seen it become an increasing subject of debate. many of the members are teacher and school principals and the fact is when you see in the headline shows up in the hallways. now the problem is not the debate itself. it is the environment of

hostility, the fact that there are legislative efforts to clam down on the speech related to lgbt people in our schools. where there is legislative language that prohibits the positive discussion, such will be in a public school and there is an effort today to pass such statute in the state of tennessee. in that environment, it is very difficult to make it clear to the teachers they should intervene. we have seen specific concerns and the district of minnesota that the probe of its statutory language about any discussion b the school faculty of homosexuality stands in the way of effective response by adults to be here but clearly crosses the line into harmful behavior directed at young people. we want to be very clear about what we are here to discuss in the appropriate role of the government to set the minimum

standard to which districts mus adhere. they must make it clear that th adults who run the schools have to protect all children including the basis of sexual orientation or gender identity. >> we will come back. >> the point of what is relevan here is not just whether there has been an increase in the reported instances of harassmen on the basis of sexual orientation, but whether there has been an increase in the unresponsive mess among the local school districts, and i don't think that any of the statistics or the thousands of pages that have been submitted to the record here address that question. >> we will go to the commissioner yaki and the vice

chair thernstrom and the individual delegated authority of staff director. >> thank you very much mr. chair . this is directed at ms. graves. one quick comment, we have hear a lot about the inability to have the right data and i would submit the part of why we are here today is to try to gather that data. part of the challenge of course is as an unprotected class, agencies are not required to gather that kind of data to analyze. ms. graves, i wanted you to sor of answer some of the questions posed by mr. eastman and some o my colleagues over having to do with the reach of the federal government, the ability of the 14th amendment and the power of congress to enact the law to

create a particular class, to d the sorts of things that would allow us not to have to tap dance on the head of an opinion here were grabbed jurisdiction on this, but what is your view of the 14th amendment the power under that to reach a protected class? >> thank you. i agree there is a need for additional data as well and one of our recommendations is that there is the additional data in the civil rights data collectio that takes into account sexual orientation which it currently does not. in the complaints made by mr. eastman, i think some of the questions that he raised have really already been answered by the supreme court in jurisprudence. there's no question of protection under the 14th amendment for sex discrimination . there's no question that there

is protection for sexual orientation. .. >> okay, the chair recognizes vice chair. >> let me address this question to mr. clegg if he wants to come in as well. i am, and, by the way, i second the questions about the data, but i am concerned about free

speech issue, and, of course, what we want to try depends on specifically what is being said and the age of the student that's being involved and it's different if it's a 2nd grader than someone in their junior year of high school in terms of what you want and the line of speech, but one of my concerns is that it seems to be possible in an effort to get rid of ugly speech of which there is a lot between students, that that effort can have a ripple effect in the school such that students

become nervous about saying controversial things on political matters, let's say where there may be a disagreement where sensibilities could be ruffled or you're talking about basic values toward the home and a student may be nervous about bringing those values to the classroom or to discussions with other children, and i wondered if you wanted to add and respond to that concern that i have. >> i think it's a very serious concern, and it's something that was said earlier with the discussion of how gays and lesbians are more sensible to stress of harassment of speech.

the school's response must be to support the gay sexuality. that all the sudden is taken as conduct that leads to harassment that invokes federal intervention and training programs and what have you. it's a very dangerous slope to head down, so on such a contested issue as this to tell people that you if you engage in such speech that some people determine as harassment, that leads to federal intervention that leads to training programs leading to positive responses of school districts responding to the conduct rather than opposing it, what have you. that's the dangerous slippery slope. we see it happen in a number of cases in the trial court levels, and i think it's a serious concern. as i understand it, there's more discussion of that in the next panel. it's a serious concern and one

we should be cautious about allowing of an overreach of the federal government of this issue to get the balance right. it's not something that's going to come from washington, d.c.. >> [inaudible] >> [inaudible] sure. >> i agree with your concern and agree with what mr. eastman said, and we've had discussions of different large animals in the room. let's be honest, i think part of what's going on here, part of what's being pushed is an agenda that seeks to use the power of the federal government to vilify and marginnize people who believe that gay sex is a sin, and they don't want that kind of thought to go unpunnished.

>> what i'm saying is that this is really -- it should be treated no differently than mary beth tinker when she wore her black arm band in des moines. there were lots of veterans in that community, lots of children of soldiers who died in vietnam or who were serving in vietnam. they were extremely upset. they were incredibly impacted emotionally by seeing the black arm bands, but we can't take away mary beth's right to wear the arm bands and safe -- same in 166, the freedom -- 1966, the freedom rides demanding equality. it upset people. it's something the government maybe didn't agree with, but their freedom got the message. we can't stomp out those

messages as well, and that's really what's at issue here to use the government to stamp out thoughts and beliefs and speech with which the government disagrees. that's a very dangerous game because it's easy to do that when it's the speech you favor, but it opens the door when it comes time when it's your speech that's targeted, and we have to stand up for everybody because if we don't, then your speech is next. >> thank you. we're going to -- >> [inaudible] >> correct a quote? >> go ahead, professor. >> i think he quoted my testimony which is, he misunderstood it. what i was talking about is not about the saying that it is okay or not okay to be gay, and, in fact, nothing in my testimony i think that other people here is about speech at all. what i was talking about is about school supporting affirmatively a gay student, not by taking sides on if it's okay

or not, but by the types of evidence i quoted about being injured, about physical assault, about rape, about being threatened, about having the property threatened and threatened with a knife or a weapon. these are not like what was referred to before and want to think that it's another thing. i'm totally in agreement with them about the speech part of it, but we're talking about very severe harm that is conducted, and that is where i think, and i agree, that the school has to have a role in ensuring students have an opportunity to learn. >> thank you, professor meyer. we'll have a question from the authority staff director followed by commissioner harrien and i'll indicate who comes after that. >> thank you. this is for professor meyer.

i thank you for providing us with a great deal of reading material. in both of your statements you addressed the idea that identity-based bullying has a greater impact on teens than jr. general forms of bullying. you were addressing lbg students. does the same hold true base on ramming, -- rage, religion, or gender? >> one of the stoided i -- studies i cited looked at the other factors. the comparison was between kids bullied based on their sex orientation versus kids bullied for reasons not related to identity, and there was the difference. my recollection of that study is that they did find other -- that being targeted as a member of a

particular group, racial group, for example, is more -- is associated with greater harm than targeted for what we call routine sort of violence,

>> thank you. >> my question is also for meyer. i just barely started to look at the literature, but so far i'm thinking there might be a tension here. on the one hand, there's the i'm okay, you're okay, everybody's okay, or almost everybody's okay in the line of literature, and i'm thinking of the work of dr. williams, and if i

understand him, he is looking at the data, this, i assume very similar data to what you're looking at, and his point is that if you take the bisexual community out of the equation, you really don't run across higher mental health issues or higher suicide rates either. the rates are about the same as the heterosexual community, and from that he concludes that this is just a normal sexual variant, and it's all very normal, and everything's fine. on the other hand, there is the literature that i believe you have contributed to that concludes that the lesbian and gay communities do have higher rates of suicide and mental health issues. can you reconcile that for me? is there something that you can point me to that would help me sort that out? >> yeah, i think professor meyers can speak directly to

that. >> yeah, as i said, there's different studies and doing different thing when you look at different problems. what was talking about is there are in fact areas in the country where gays are more accepted. they have a less of those stressors that i was describing. he works at cornell university area with gay youth there, and he has shown they are doing fine which is consistent with what i said and others said that when the environment is supportive, when the parents, when the schools are sportive, these kids do well. in terms of defining suicide and in particular what you quoted, is it true -- it is true that bisexual youth have more problems than gay identified youth, but both bisexual and guy youth have much more experience of suicide

ideation as well as serious suicide attempts than heterosexual youth, and this is shown in many, many studies. like i said, this is the evidence we'd like to see where it takes an accumulation of studies and looks at what the panel shows, and this is going to be published soon by marshall and it shows many studies. >> my study shows suicide rates were the same and it suggests the bisexual community is different. we're dealing with a complex problem here, more complex than the complex of bullying leads to suicide. >> that is wrong. that was not defining. the defining is that both gay, please yesian and bisexuals have more than bisexual peers, but they have more than the others, but they both have more than

heterosexuals. >> i have to interrupt you. commissioner is followed by commissioner yaki. >> this is a question to ms. byards. is there a case of training students to hold particular views, i would be against that for the particular reasons that you outlined in your testimony. forced professions are to be resisted at every turn. they shouldn't be the manifest cation of the --

manifestation of the government or private parties for that matter, so i couldn't agree with you more, nor would i disagree with the notion that if thrp an effort to get -- this were an effort to get rid of ugly speech, we should turn away and run away as far as and as fast as we could because the government has no business in trying to outlaw ugly speech no matter how offensive provided it's not a precursor to ugly, damaging action. ms. byard, could you talk a little bit about the training that we've heard so much about? discuss the extent to which it

forces students to hold or to manifest particular views or it is an effort to rid the public's fear of ugly speech. >> i just want to say one thing first. it's hard to know what training people are referring to in part because districts that have antibullying policies that specifically address sexual ore orientation seek professional development opportunities from a wide range of places such as -- >> just comment on the whatever training you offer -- >> sure. >> in this regard. >> the purpose of training, for example, work that we did actually in partnership with the adl and the city of new york -- >> who? >> the antidefamation league were among the partners what provided district trainings through the city of new york,

trainings designed to prepare school staff to respond effectively to the kinds of behaviors that could have a debtmental -- detrimental effect on student life. as i said before, what we found is these trainings over time, tracking the participants, actually had a good effect in terms of the ways in which those school staff responded to things happening in their schools, but i would note very, very clearly and firmly that all of this is about an issue of behavior, not belief. we are talking about efforts to ensure that schools as entities effectively act to deal with the hostile school environment that lgbc students face. we do not need to th