>> well, i think -- let them first tell you that in addition to the school board members, we also represent 3,school lawyers across the country. through the council of school attorneys who joined in our

response to the dear colleague letter. i think the concerns that the school lawyers have and the school board members and have and the sba have really rise from the implementation does. one of the things i spoke about very briefly was the whole question of the chilling effect was to institute the least introducive approach to solving a question. and one of the things that the ocr has done is that it's slightly done is set out a variety of examples that are meant to be instructive to school districts to what they can and can't do. and a part -- just to illustrate one example is the whole approach that they use around gender discrimination. and what the department seems to be suggesting even though they very clearly state, for

instance, sexual orientation discrimination is not covered under title 9 we know some courts have depending on the circumstances but their enforcement standard is very clear and what we think is a problem is that a school district may adopt, for instance, a more stricter enforcement standard, a more strict standard following the guidelines and then adopt for itself some type of legal liability. so, for instance, if a school district decides that it's going to use the enforcement standard and include sexual orientation as a protected classification and by the way, most school districts already have that as a protective classification but if they go then one step further and then equate that with gender discrimination, are they somehow now waiving a potential defense under title 9 lawsuit, for instance? and so these are the type of difficulties from a legal perspective that school

districts have. >> thank you very much. first of all, i want to say thank you very much for coming here. thank you for your courage for sharing the picture of your son with us. that brings a face to what we're talking about here today. my question is for mr. zegron. if you have something to add, i want you to join in. mr. zegron, i'm going to be as simple as i can but it seems to be very difficult to listen to your testimony talking about the fear of lawsuits and plaintiff's lawyers when you're talking about sitting next to someone who lost their son because of a loss of leadership at the local level.

the school failed in protecting and utterly failed when it came to her and talking about plaintiff's lawyers saying there's a price we have to pay and there's some cost benefit analysis we have to do when it comes to how much of a child's life is, at least that's the way it came to me. i know that's not what you meant but that's certainly how it came out. and you talk about the fact that there should be no federal mandates because there should be local leadership. how do you explain to her and to others and how do you explain from five years later when the school district has changed, new leadership has come in and this may just be a memory to them? how do you explain to them to what happened to her and why there shouldn't be any federal mandates. >> sure. and thank you for the opportunity to clarify that. certainly my remarks aren't meant in any fashion to disrespect the personal tragedy.

school districts concerned about bullying. they're concerned about the tragic loss of students. school district do have a responsibility to educate all students. and litigation defense dollars are important. it may seem callous in the light of realities and tragedies that may happen. every dollars spent on litigation come from general dollars. so depending on the size of the district, we're talking about dollars that could be spent in the classroom to educate all of our students. one of the missions of school boards and school districts is to ensure the safe -- that the environments in which students learn are safe. but those environments could not exist without funds and so it's not meant disrespectfully, commissioner.

it's meant as a very real recognition of the realities that face our schools. >> answer my question about the loss of leadership in this instance? >> i don't represent that school district individually and i can't respond -- >> but you're saying that you want local leadership but they failed here. so why do you want local leadership? >> i think by and large there's always an exception to every case and by and large school districts care about what happens to their students. just because there may have been a particular lack of leadership in one situation or a policy that didn't work doesn't mean that we should, therefore, assume from that that all school boards are without leadership. that's the way that democracy functions, sir. >> i want to add that locally, speaking of which, i grew up in minneapolis. and i -- there wasn't a problem

with diversity. right now minneapolis has the best bullying policy that i can even think of. i also just moved over one school district over. i have an 8-year-old. and this school district -- when i'm asking for -- i've been asking in hennepin for eight months now to please offer training to their staff, and they said oh, they did provide training to their staff. i said well, you know, i would like to know what you did. they mailed me a 12-page powerpoint. whereas, just five miles away the school district i'm in now -- so far this year they've already had -- every month they provide four hours of teacher training and different aspects of bullying. i went to one when they did the

lgbt and the lawyer even described to all the staff what the policy meant. so for local involvement, you know, a couple of years ago, governor pawlenty was going to sign a bill, safe schools for all. i guess there was a lot of suicides back then. well, the suicides slowed down and even though the other people that were trying to pass the bill changed so many things about it, he ended up did he think it or vetoing it. and now -- i mean, how many more kids have died. i wonder if the safe schools for all minnesota bill would have passed for the whole state, would my son still be here today? so in minnesota, and i know down

in texas, and over in california, there's so many -- i mean, with all the kids around the country coming to me and telling me what's going on in their districts, obviously local involvement is not working. >> the chair recognizes the commissioner >> thank you, mr. chairman. thank you to all the panelists and my condolences to ms. aaberg. an earlier panel, i don't know if you were in the room, ms. skim talked about the south philly school district. it was an extraordinary situation. the commission has been very interested in it for a while. and many of the incidents there were incidents that i consider to be criminal conduct. yet, at least according to ms. skim, there was no

discipline of any staff members. maybe she doesn't know all the circumstances, but no counselor, no principal, no vice principal, no superintendent, no one was disciplined, not even a written warning, maybe. then she testified also that a complaint was filed with ocr -- i'm sorry, with the department of justice on january 19th and then at the end of february, the department of justice showed up. and they have rules. and there should be certain rules. but it strikes me that those rules would be ineffective in that interim six-week period where kids were getting beat up, heads beaten, hair pulled and people being dragged down stairs, yet, no one was disciplined, and i'm wondering, you know, here we are in washington and we like to write rules and get the lawyers involved and those things are appropriate but in terms of the

immediate prevention of this kind of conduct, it strikes me that's something that a principal, a teacher, a counselor, a security guard should be involved in. what are the things that can strain schools from taking immediate action, exercising some form of accountability at those principal actors right there on the ground as they say who can prevent the conduct in the first instance? >> thank you for the question. i wasn't in the room when that conversation was had so i'm just going to speak from a sort of theoretical approach, but my guess is that part of the reason is that you don't know if any employees or any staffers were disciplined is because there might be a collective bargaining in place, there might be some sort of public service laws that keep employee disciplined matters private or confidential until there's the end of that proceeding and that may be

undergoing what the district is going down. i may be speculating be those collective bargaining agreements or those laws might have prevented some sort of employee action. i would hope that that is not the case. part of what we are concerned at the national school board association is that educators be able to act when they need to act. if a policy is not a good policy -- and i'm not familiar with the neutrality policy that was discussed earlier, but that policy didn't seem to work, did it? and so i think the first thing that we need to do is make sure that our policies empower educators. that educators know that they have the ability to act to correct whatever situation comes before them, whether it's bullying or harassment. but also we need not to chill their ability to do that. we need teachers not to believe that there will be an impending federal lawsuit if they do not

treat a specific set of circumstances as a federal civil rights violation. courts have said -- the court out of the sixth circuit, for instance, to use the scenario that has been discussed about sexual orientation, that sometimes adolescence simply engage in harassing behavior that doesn't necessarily equate to a protected category under federal civil rights legislation. and so, therefore, teachers need the ability, educators, principals, as you mentioned, need the ability to make those decisions on the ground, revolving it as least intrusively as possible if that's what it's called for. >> chair recommends the commissioner [inaudible] >> i'll keep it previous. i did hear the response i heard a lot of things that the justice ordered including training and various mediation components for students and staff. i would be curious, and i don't

know the answer to this in that case, did they also address the issue of why the school district or whoever did not make a complaint for assault? we heard assault. and if not, i'm just curious how a federal intervention by the justice department can bypass of what you have on the lack of jurisdiction on criminal assault. >> and now we'll be move to accenberg, and the others. >> thank you, mr. chairman. i want to begin by also thinking ms. aaberg for her testimony and for being so candid with us, obviously, at great expense. as the mother of a dearly beloved son myself, i can only

thank you for offering your wisdom to this body as we discuss this very important national issue, as it pertains to all children. my question is directed at ms. lauter. i want to preface it by saying that i have enormous respect for the ongoing and many decades-long work of the antidefamation league on combating bias in every form. and i understand you have a great deal of expertise in that regard. your organization that you've been willing to share with many

communities and i want to thank you for that. i have in front of me more than 75 letters and declarations from parents and students about the misery that sometimes led to enormous physical violence. sometimes led to suicides in some cases. often led to deteriorating physical condition or mental health that emanated from pervasive harassment and bullying. in some cases, as young people -- people were spit on, taunted, punched, hair pulled,

genitals grabbed, vicious assaults, and vicious taunting was leveled in many cases, does that description surprise you? does it comport with some of the things that you and your organization are seeing as you undertake this effort to combat bullying and discrimination in various forms? or does it seem out of what -- whack what you're seeing on the ground? >> it comports to what we're seeing. and it affects -- it's not confined to any gephotographic region in the country. it's not confined to schools

that are having diversity issues in itself. the bullying issues can happen almost in any school, including private schools that you would think of bigotry and whatnot. i got an email from a friend in atlanta whose daughter who attends a private christian school, one of the best in the atlanta area sharing with me the cyberbullying messages that she was getting because she was jewish. so it's every, unfortunately. if you don't mind i want to follow up on ms. if i recall's comments on the standards in a state. in our testimony we present to you -- and i hope you do take a look at it. we charted all the states' antibullyi antibullying we followed the 48 states. we charted what was in each of those states so as she was commenting i looked up what

minnesota's state is. and these are elements that we would look for and we put into our model of statute -- what we would like to see in a comprehensive state. in minnesota, they do have a district policy. they do not have a model policy. they do not have -- i take that back. they do have cyberbullying mentioned in their policy. they don't have enumerated categories. so there's no clear signal what is covered. they do not have any procedures for reporting. they do not have any notification processes for parents so parents won't even know that there's a policy there. there's no requirement for training so administrators, educators don't have to do it. and there's no accountability or reporting which is a key component for us. how do we know what's happening is being reported? how can this body, you know, do a better job? we need data collection. we need an analysis of how

widespread and so that's why for us this combination of having state laws as well as the federal government doing the big picture would be enormously helpful to advance this. thank you. >> chair recognizes commissioner titus. >> this is our last panel and last chance to speak, i want to sum up a couple of things. i read a lot of references we don't need it at the federal government and we need to leave it at the local level and the justice department to solve this problem they work with local school districts. it's not something imposed but comes about collaboratively and i heard we don't need federal government we should leave to the local government to set their own policy and yet there's been no mention of any mechanism of enforcement. you can set a policy but then if you don't carry it out, what good is it? and if you don't have some

hammer coming down perhaps from the federal government, nobody said what else you're going to have as an alternative. third, i've heard a lot about the chilling of having a policy from the federal level and i thank you, mr. negron and i think you said, quote, they don't want to see themselves on the front page on the paper. it's better on the front page than on the obituary page. and finally a question i have for the professor, you talk a lot about the dear colleague letter and how that's made this a first amendment issue, 24/7, all kinds of speak but you don't mention the morris versus frederick case and how that might have some implications for this because it's more restrictive of speech schools than the tinker case. would you elaborate on that for us? >> sure, so morris versus frederick was a decision several years ago. 5-4 with a very important

concurring opinion that dealt with speech that at least the court interpreted -- it's probably correctly as a prodrug speech at a school function. and what the court said in addition to the exceptions that is recognized for in the context, and vulgarity and description and disruption in the tippinger case, there's another description for advocacy of drugs at school. not clear whether that's the answer. that is the majority ruling. there was substantially -- there were two justices in concurrence and it was narrow and limited to speech that did not have a political dimension. they interpreted that political statement as being entirely apolitical. so it does -- what we do know when it comes to speech that essentially advocates illegal conduct or seen as advocating

illegal conduct, which is to say drug use at school and that is not political, that that forms another first amendment exception. i'm not sure that supports the dear colleague letter much. if it was limited to speech that advocates violence at school in an unpolitical context, then perhaps the analogy would be quite close. the dear colleague letter sets up a standard that is by no means limited to advocacy of violence and drug and the like it involves just insulting speech and such. it's not speech limited to school nor does have it any exception for speech that might have a political religious dimension. it doesn't mention that at all. so i think frasier and tinker are potentially relevant more broadly but i think morrisly is more relevant. >> but harassment is illegal and it does also mention restricting off-campus speech i do recall

but that's all right. but i do conclude by saying that i think you're very brave and i think your son would be very proud of you. >> thank you. >> i'm sorry. if i could just respond -- when you say harass summit illegal. justice alito then judge alito in sax made no exception to harassment. speech cannot be made illegal and stripped by first amendment by either simply have that amendment or having interpretive regulation. what is going on in morrisy versus frederick it's conduct not of speech that is illegal but conduct that is illegal and the court said that is actually -- i don't think that helps much to support the constitutionally of speech and harassment. >> thank you. and i thank all the panel again but i've got to choose and so i choose the professor on this instance. and i wanted to -- my earlier questions were related to why i

thought the federal government's expansion into the type of student teasing and harassment might not work well for the intended result but i said i have legal concerns but now i'm going to raise the legal concern. you mention one in your written testimony, and that is the conversion of the standard. let me tell you about -- you probably know the morgan versus swanson case on the fifth circuit en banc right now involves a group of situations in the schools where one situation parents attending the winter party were not allowed to pass out their child's goodie bag to the other parents because it contained religious material and was instructed that religious material was prohibited on the school. their defense in the fifth circuit en banc and they've lost all the way up and down. it's now just on damages is that students have no first amendment

rights. it's breathtaking to me. clearly these schools need to be educated on true tolerance in respecting first amendment rights. i think there's a serious problem. so does the ocr help in this regard or hurt the legal standard by the supreme court is severe, pervasive and objectively offensive so it must be both severe and conjunctive. the ocr is in education of these miseducated schools is severe, pervasive or persistent. so if a child very politely persists that jesus saves, once a week, in one such case the child was overheard praying over her lunch and was prohibited from doing that. what are we to take of whether the ocr's guidance what the first amendment requires. is that helpful or hurtful? >> under the merits i think the

ocu guidance is mistaken as opposed to the supreme's standard in davis severe and objectively offensive but i think there's a broader point i think maybe what you're trying to get at is that -- one thing that troubles me about a lot of this discussion, including the dear colleague letter is the sense that there's a denial going on. that there's a speech issue in play. sometimes the claim is, well, this is conduct not speech even though the conduct consists of verbal acts which is another way of saying speech. sometimes the claim is well, it's harassment, not speech, even though if you label speech and other labels, either harassment or sedition or emotional distress, to be sure the dear colleague letter appearance footnote there's a first amendment letter and we don't want to tramp on first amendment but that's

particularly helpful to school districts where if they need to know what exactly it is that they should be protecting under the first amendment. they're generally not letters. here they have this long letter of all of these examples of mostly conduct physical violence that needs to be restricted and there are occasional repairs posted on the website. really no meaningful examples, well, here are things that you should be restricting or here are things that whether or not you should be restricting that you don't need to cover. that here are the kind of political religious personal commentary on campus or off-campus that needs to be protected. it's not offering any real guidance. the fact is we have laws to deter people.

and that apa disproportionate -- a disproportionate impact than the threat of civil lawsuit which is in many respects considerably harder to be first amendment rights so my worry with letters like this, approaches like this that do not really acknowledge the first amendment issue and don't chart out examples of specific solutions, what kind of speech should be protected the inevitable effect there would be substantial terms of -- >> can i add to that? >> there's been so much talk about freedom of speech. i honestly don't think -- i mean, maybe i don't know. maybe i should make a bill about or ask for an amendment to the first amendment saying that, you know, it can't, you know, apply so much to students. i mean, their brains aren't even

developed. they shouldn't have free speech to be able to harm people. yeah, they should be able to pray or, you know, just things that aren't harmful or their beliefs. my son told two months before he died that a kid told him he was going to go to hell because he was gay. so according to the first amendment that kid has that right to tell me that when all these churches actually had the kids -- the church kids go to school and wear shirts and my son was the only out-kid in his grade and i'm sure he got a lot of that day. so i don't see where the first amendment -- i mean, for students especially it should be -- if it's harmful, that should be it. it shouldn't be allowed. i mean, your opinion, whether, you know, i don't agree with

your religion or, you know, i don't agree with, you know, my religion doesn't accept gay people, stuff like that, that's fine. that's your belief. but to go up and tell someone they're going to go to hell or call them all kinds of names, i don't think that should be freedom of speech. >> i'm going to ask a question and then we'll go to commissioner harriet. we hear about the neutrality policy and on its ways the word "neutrality" seems so benign yet we've heard from you, ms. aaberg, how malignant it has been and you've mentioned for the last eight months you've been interfacing with the school district to undo that and they haven't and as you indicated last night we don't know all the other circumstances a child committed suicide. what are the stated reasons the school district is not giving on the neutrality issue and conversely what are we seeing in the various states that relates

to the neutrality states impact. if ms. lauter can answer that. >> what we're finding there's a local gruel called the parent action lee. it's called p.a.l. it seems whatever they request they seem to get. we found out the board seems -- they have a relation with the counc council. it seems so much more involved that outside groups on that aspect are coming in. they say they don't want their kid to be, you know, mentioned about gay people. but i don't understand why kids can't know that they exist any ways? and we're not even asking right now for curriculum or anything. we're asking just that these kids have rights and that it should be -- they should be protected. and so with this neutrality thing that's what's most likely

happening is they keep saying that these parents have rights to not have their children hear about gay people. and i asked the board, what about my son be able to learn that gay people exist? and they couldn't answer that question for me. but that's basically all the evidence that, you know, we've found and articles, locally have a lot to do with the vocal christian groups. i'm a christian and like i told my son when he told me this, i said god loves everybody. so for them to even use -- it's like they're using hate in their religion to harm other people. so that's kind of how it's winning out with the neutrality policy out in hennepin.

>> the neutrality policies result in avoidance of an issue. i was very struck by the commissioner talking about what makes a good school and it takes leadership. and what it takes is some top-down leaderships and the principals and the teachers that are leaders in the classroom to be able to address issues in a way doesn't promote, advance any kind of religious beliefs but at the same time they are able to talk about respect for others. the word "tolerance" and adl we talk about respect for other tolerances. we discuss these laws, when we do training we talk about all the different kind of classes so it's not any kind of promulgation of one ideology over another. it's a respect for human beings and for individual differences.

>> commissioner? >> thank you. mr. negron, by my account at least you've had a disproportionate share of the questions at least towards the beginning of the panel but i want to throw one more your way. i want to ask you a question that is a follow-up to commissioner yaki's question from a few minutes ago. i think it's a quick one and we can go on to other questions here. i suspect, and you can correct me if i'm wrong, that one of the things that your members have to look out for is the possibility that the next suicide case, the next case coming down the pike could be a suicide by a student who was wrongly or maybe even rightly accused of bullying, and not the bullying victim. am i right that your members have to balance a lot of

considerations when they set discipline policies and it's not always easy to know what the right thing to do is, and that sometimes tragic mistakes are made? >> well, i think you certainly are correct that educators sometimes make the wrong decisions for the best-intentioned reasons. most educators act in good faith. most school boards acted in good faith. and sometimes mistakes are made. i think what's important about your question is to understand that school boards need to have policies in place that balance the issue of students and i'm actually really gratified that the conversation has involved such a large first amendment component because although we are talking almost exclusively about the tragedies that

surround students in terms of violence and death and that is very pointed. we also need to understand that school districts and educators have to make those balanced choices between first amendment choices, the rights of students and the rights to a safe learning environment. >> and i assume suicide on both sides of the equation can occur? >> i imagine that happens. i don't know that's necessarily present in anybody's mind but it does bring to mind that these are very tough choices for educators to make on the ground. >> thank you. >> the chair recognizes commissioner yaki. >> thank you very much, mr. chair. my mind is kind of boggled by something that was last said because i'm not too sure how we balance rights when it comes to protected class of individuals who deserve and need treatment and protection under the constitution but my question is to mr. volak and i'm going to

ask you to be helpful. >> i try. >> and i think you can do that. you talk -- and i think i said, too to one of the previous speakers i'm very much a big first amendment close to absolutist in many ways in the way i was taught and brought up and -- but i also understand that there are limitations. that, you know, when you're in a crowded theater, yelling fire falsely claiming fire in a crowded theater can cause imminent chaos, death is something that is not protected. so i'm going to ask you this because to me certainly there are analogs and criminal law and there's analogs in other jurisprudence where the supreme court has held, for example, the

free exercise clause may not protect parents from certain acts involving their children. massachusetts, jacobson v. mass. you're familiar with those. so the question is, having heard testimony earlier today from -- and believe me as commissioner actenberg has said we have stacks of testimony about how in the situation of, say an lgbt child or youth, the kind of -- the kind of possibility, the vulnerability, the disparity in terms of -- in terms of how they perceive themselves and how they believe how other perceives them and how it leads to others in terms of suicides and depression, those kinds of things, is there some line -- is there some threshold where

someone essentially i would say lights the match but is engaged in a kind of nonphysical but psychological word play, verbal harassment ongoing that to you for a child, for a young person, someone who's brain is not as fully developed and who have these mental shields and engaged with these colloquies like we feel like we're being picked on, maybe we do, but for a young person, for whom the supreme court has said, there are some different constitutional observations in terms of their ability to deal with certain things -- help me and if there's a way that we can -- that of department of ed or justice can

come up with some kind of standard, you don't have to punch them if the face but if you deliver the equivalent to a punch in the face to someone that verbally through other kinds of actions -- that puts -- that sends that person into a potentially dangerous area where we have to worry about assuagation to another person and doing harm with themselves, what have you, help me, where can we draw that line, if you can? >> so it's a very interesting and difficult question. i should note the free exercise cases the supreme court has interpreted the free exercise clause as being a nondiscrimination rule even in the 30 years when they saw it as a much more weakly protected -- >> that's right. you're a professor and i'm like up here, so -- >> but the other thing i should say is that it's not the equivalent of a punch. it can be bad.

it can be extremely distressing but it's not the equivalent of a punch and i think it's important to distinguish the two. the other thing i should say -- >> why isn't it the equivalent -- let's take, for example, i saw in your bio you do criminal -- >> yes. >> let's take, for example -- so you would believe that, say, for example in a defense in criminal case of battered woman syndrome, if the spouse was not physically touched but was subjected to intense emotional cruelty, those actions -- that's a first amendment-protected action? >> in a matter of criminal law -- when you mean battered woman syndrome woman claiming self-defense. >> right >> threat is a different manner. when we're talking about threat of violence. that is punishable and it's treated as not quite the equivalence of someone but the example you gave, no. if somebody said, well, he was very cruel to me and that's why i shot him, you may not even get

a voluntary manslaughter defense much less a self-defense defense so the law quite rightly does not create insulting things as the equivalent of violence. >> but for children? >> what? >> commissioner, let's try to keep that one question. >> you know, if you're asking to analogies, no, it doesn't treat them as equivalent. and i think it's important to keep them different. now, you might say, despite the fact that they're different, nonetheless certain kinds of insulting things can be restricted. i should say also inside school, a good deal could be restricted partly under the frasier doctrine that there's actually vulgarities and face for face are in the fighting words. cyberbullying if somebody says mean things about somebody on their facebook page, student a doesn't like student b for whatever reason and says i think student b is bad for whatever reason, his religion is idiotic

and he's gay and that's bad or she's pregnant and that's bad or whatever also, i don't think that it would be sound even when we're talking about children and usually there will be teenagers or close to it to say, well, yes, because there's fortunate -- suicide is a tragedy but a small fraction of insults lead to that, because of that we're going to be able to have insulting things on their website. there's several reasons for suicide, romantic problems cause problems. we don't go out and regulating romance because of that danger, including danger to teenagers. i think if we want -- we certainly want to stop violence. we may very well be able to do a lot of the things within schools but to start come up with a pervasive kind of code of

regulations of what can be said on facebook pages because somebody who's insulted even deliberately insulted on that page could commit suicide that would be inappropriate speech regulation. >> you know that whenever commissioner kirsanow asks for data on bullying, it started, whether the same questions were asked, the progression, there's been crickets. no one knows -- you're the first person, i think, to admit that there are serious gaps in the data so i'm going to ask to you elaborate in two respects. what data exists? where does it exist that shows incidents of bullying that, you know, can be actually traced over time in some consistent manner and more important to

instance, if you could answer, what data is there, if it exists anywhere, of school systems indifference or animosity or encouragement of that kind of bullying because that seems to be that second category of data seems to be more relevant when the federal government should get involved, whether they should swoop in a real case of physical indifference or whether they should act in a much more systemic and universal way. >> to answer the first part of the question, there is no historical data of bullying to my knowledge especially at the federal level for an extended period of time. in fact, the department of education safe and drug-free schools office now is trying to start collecting that for one of the first times through what they refer to as school climate surveys. and there's a number of issues associated with that. we do not even have accurate

federal data on the number of crimes and violence in school because there is no incident-based data on k-12 schools such as what is required under the cleary act to colleges and universities. there is no such law for k-12 schools. so we don't know how many crimes, assaults and other incidents that are criminal are in schools, much less the other offenses and lower level adepression bullying. the second part -- the second part of the question is, i have found -- we've heard the phrase "zero tolerance" used a lot today and in my 25-plus years in schools -- most school administrators strive for firm, fair and consistent discipline applied with good commonsense. sadly, and, unfortunately, we do have those anecdotal cases, more than one is one too many where that latter part, commonsense, is not there. but i found that by and large school administrators err on the

side of giving children the break in situations, to give them the benefit of the doubt. i don't think that there's a mass conspiracy called zero tolerance and to go back to commissioner titus' comment and to relieve mr. negron i think he took unintentional hit who said a principal being in the newspaper -- i would own up to that on the record but what i also said when i used that example i followed at the end of that by saying that the concern was -- his concern and mine was that the fear of the newspaper would not be in lawsuit. it would be from overreacting and political pressure on them and the threat of a federal investigation would actually force them to overreact, not to underreact. >> thank you. >> i've been informed by my acting staff director that we actually started 10 minutes early. we can go to 4:15 without being, you know, unfair to the other panels.

i've got the commissioner who've asked for a question. anybody else on this side? so commissioner, then i'll use the chair's discretion and ask the last question before we end for the day. >> well, first with regard to the dear colleague letter, let me say that it is standard practice among federal agencies to offer guidance within the realm of their expertise. i did it when i was fair housing assistant secretary without complaint. no one said it was ultra virus for me to do it and the courts do give great deference to the expressions of expertise of federal agencies. mr. marcus did it when he was the acting secretary of ocr in the department of education, the same thing that ms. aaberg and i

understand you have other quarles with the breadth of the letter but let me just say to mr. negron's assertion that somehow courts giving deference to guidance being offered by federal departments clearly within their mandate and their area of expertise is not only nothing unusual. it's an agreed-upon construction of federal law that is almost universally respected by federal courts. but back to the seriousness and pervasiveness of the issue at hand, and let me also say i

respect, professor, your efforts to answer in good faith, commissioner yaki's question. i think it is -- these are difficult questions to deal with. the line does have to be drawn somewhere when we're talking about federal rights. and it's not always easy to tell where the line should be drawn. however, given the conclusions of the national crime victims survey that points out that 1 in 4 latinos reports being severely harassed, given the fact that we are told that almost 100% of young people with disabilities report being harassed or severely harassed, given that

80% of students report that they experience -- have experienced at least one of the many forms of sex discrimination in schools, given the fact that sexual minority youth, 8 in 10, say at some point they have been harassed or severely harassed, i think this is an issue that is important that we need to take cognizance. and there doesn't need to be a federal remedy on this but in this case there is well-recognized federal authority that is being invoked in this case, at least to my mind. and we heard a number of

concurrentences who work every day in the field. >> i'd like to ask ms. lauter, the need for a federal response, would you articulate again why the grid of 45 state responses and the hundreds and hundreds of trainings that you yourself and you are organization have done throughout the country isn't sufficient to address this per vaili vaili vailing issue. >> it can be what a district has in order to be effective but it also and since this is the windup of the session that it's critically important at the attention fair to say federal

level that the subject -- the very fact that this commission is addressing this issue is fantastic because it's going to shine more light on what the problems are and what the challenges are. this is an enormously difficult subject. and so you've all seen that in just one day. and for those of us who struggle with it every day, it needs from the highest level down and again, we commend the obama administration because they did the white house summit. they recognized the problem. they shine a light on it and now it's up to the rest of us to work together to -- i don't think we'll ever fix it completely but we can certainly make a difference. >> i'll ask the last question. we've heard throughout the day today about how the system is so terribly broken. part of what we want to do with this report is to put out some best practices and show some success stories of how this can be done right. i know ms. lauter you've got that overview. i know mr. negron, the perch on

this. can you tell when you have a done to we can prevent more of our children from taking their lives or being forced to give you some. >> maybe in writing might be the better way to do it. sometimes the best practices that i would be able to share with you are ones that come out bad, and are in the community but there are other systems that have come up with good policies that do all the things we like to see in terms of reporting, training and accountability. so i'd be happy to submit that later. >> please, please do. >> i appreciate the invitation because state associations of school boards across the country do have a variety of trainings, some more intensive than others for school boards and we'd be happy to share that with the commission. i would point out i think school board members would probably not the fact that i'm point out a

specific piece of legislation, but an example of one that the jury is still out on, we don't know its effects because it just went into effect in january, signed in new jersey. it's a very comprehensive model of what state laws can do. they require all kinds of training with definitions about bullying, what to look for. they encompass a plethora of scenarios for school districts. and have in similar fashion to the idea, the special ed. law have timelines in which school officials have to report what they see to the next level of authority, all the way to the school board and then requiring some sort of action. they also in new jersey require training by school board members on the different kinds of harassment. so there are states -- that's, i think, the most comprehensive statute in the country. it's certainly just one model. and there are others. we'd be happy to share that with

you. >> thank you. we appreciate it. >> can i comment? >> i think what might be i don't know a good compromise, i guess, is if, you know, the federal government can make more -- like maybe me inclusive on title 9 for, you know, sexual orientation and gender identity and maybe appearance, people being called fat or tall or whatever. and set things in place. like make each state accountable. like set more like guidelines and have reports submitted to them and have like the states follow through and maybe then submit, you know, based on the problem with that and then submit reports to the doe, doj if it's very worrisome. that would take a little off the doj, doe in a sense and give them the best -- you know, i

mean, i'm trying to say the instances that really require attention. and then so that way the states have control but yet they do have guidelines. >> thank you. well, on behalf of the commission we want to thank each and every one of you that are here this afternoon and all the panelists that are with us here today. i also want to make sure that i publicly thank the commission staff for their herculean efforts to prepare this hearing, this briefing for today. many of them are working day and night to do the work that is normally done in a year in half the time so we very much appreciate that. and working very hard to make sure we make our statutory report deadline. in particularly, i would like to highlight commission staff members, so wave your hand, pam, lillian, audrey and, of course, our acting staff director and acting general council kimberly. lastly the record for this

enforcement report is going to remain open for the next 15 days. if panelists or members of the public or anyone watching this on television would like to materials to us in writing they can mail them to the u.s. commission on civil rights office of the general counsel 624 ninth northwest, washington, d.c. 20425. it is now 4:19. this meeting of the u.s. commission on civil rights is hereby adjourned. thank you. [inaudible conversations]