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Time to add another “protected class”?

Lady Gaga wants to speak with the President about students’ civil rights.

One week ago today, Jamey Rodemeyer, 14, committed suicide. Jamey was harassed in school and through social media for being gay. In one online video he tells us, “They’d taunt me in the hallways, and I thought I’d never escape it.” For strength Jamey embraced the message of Lady Gaga’s song,  “Born this Way. ” It became his personal anthem and she became his idol. His death hit her hard and she’s now calling for a movement to make gay bullying a crime.

Do we really need a new law?

Legislation seems to be the only way to curtail – we never completely stop – discrimination and acts of hate. For schools, federal civil rights laws already prohibit discrimination and harassment against certain groups in programs or activities that receive funds from the US Department of Education. The law makes discrimination based on race, color, and national origin, sex, disability, and age against the law in every state, in every educational institution.

These groups are members of a protected class of Americans. It’s clear who is missing from this list. Lesbian, gay, bi-sexual, and transgender (LGBT) students, 90% of whom report being bullied in school, have not yet been identified as needing legal protection. Yet research continues to confirm that gay-bashing of students is a widespread and common occurence.

What have we done so far? 

In October 2010, Congress passed the Matthew Shepard & James Byrd Jr. Hate Crimes Prevention Act. This expanded the 1964 Hate Crimes Act to include crimes motivated by sexual orientation, gender, and gender identity.

But is bullying in our schools a crime? Not unless it escalates into physical violence and threats of bodily harm that break the law. This leaves schools free to treat  acts such as taunting, name-calling, rumor spreading, stalking, and cyber-bullying, which lie toward the middle of the violence continuum, however they see fit.

Publicity about suicides has increased our understanding that school staff are responsible for keeping the climate of their schools free from hostility and harassment. Schools are now advised, and in some cases required by state law, to treat such incidents seriously and to respond quickly and definitively.

But as history teaches us, without the authority of a federal law that identifies those who are LGBT as a protected class, the way students are treated will be hit or miss, helpful or harmful, and too often left to cause emotional and psychological damage.

If Lady Gaga and the rest of us continue to bring attention to the issue, we might just pass a new civil rights law that protects gay students.

McInerney Murder Mistrial

It had to be a slam dunk, didn’t it?  He shot and killed his classmate in front of a room full of students and the defense never contested that he was guilty of the killing.  But yesterday the jury told the judge that they were deadlocked with no chance of reaching a unanimous vote.

Brandon McInerney was barely 14 years old when he killed Larry King.  Three years later he was tried as an adult, as allowed in California by a 1995 law that changed the cutoff from 16 to 14.  To a handful of the jurors, Brandon McInerney was guilty of  either first or second degree murder in the death of Larry King. But seven of the jurors wanted to convict Brandon of voluntary manslaughter. It’s no wonder they were a hung jury: When it comes to children, people’s reactions are influenced by many factors, including our cultural belief that adults should protect children from violence, and their personal attitudes and experiences. We have compassion for an abused child and in this case it appears the jury thought that both the murdered child and the murderer were victims.

Trying Brandon as an adult made the jury’s job more difficult. They had to decide which of these adult charges, with very adult consequences, applied:

  • The most serious charge was first degree murder, which California defines as the willful, deliberate, and premeditated killing of a human being, or a fetus, with malice aforethought.  Malice aforethought is the conscious mental determination to commit an unlawful act. While the seven jurors may have believed Brandon did premeditate and have a plan to intentionally murder Larry that day, they also may have believed the mandatory 25 years to life sentence carried by a first degree murder conviction was inappropriate in this situation. And if they convicted him of  first-degree murder and a hate crime, the sentence would escalate to mandatory life without parole.
  • Second-degree murder is any murder not defined as first-degree murder. To be considered second-degree murder the homicide must be intentional and with malice, but not premeditated or planned. It is also not a killing committed in the “heat of passion.” In California a second degree murder conviction carries a 15 years to life sentence. Again, given the particulars of the case, the possibility of life imprisonment, with little chance for rehabilitation, did not sit well with many on the jury.
  • Voluntary manslaughter occurs when the homicide is committed without malice aforethought, and is instead a spontaneous act arising during a sudden quarrel or in the heat of passion. As compared to first and second degree murder, voluntary manslaughter carries a sentence of 3, 6, or 9 years; a life sentence was not an option.

Charged to keep an open mind and to consider all the evidence presented, they heard testimony of warning signs of escalating friction between the two boys and missed opportunities where school officials should have intervened. Adults had a chance to prevent the tragedy and they failed. With all the emotional nuances of the case, it isn’t hard to see why the jury deadlocked.

But was the killing premeditated first degree murder? I believe the evidence proved it was. Brandon told others he was going to kill Larry, and the next day he stole a gun from his house, hid it in his backpack, went to school, sat in the same room as Larry King, and after a few minutes got up and stood behind him, and then shot two bullets into the back of Larry’s head. At the time Larry was not bothering or even interacting with Brandon. There was no argument, no provocation, no verbal taunting that would trigger “a heat of the moment” homicide.

Yet seven of the jurors voted for voluntary manslaughter. Why would they do this? We already mentioned aversion to condemning him to spend a good part or all of his life in prison, but Brandon had other factors working in his favor: he was white, good-looking and boyish, not at all threatening; he killed a gay student portrayed as a flamboyant sexual predator who harassed him; testimony that he suffered great emotional and physical harm at the hands of his father, the same person who taught his sons to believe that gays were an aberration not worthy of respect. Brandon was abused at home and bothered in school by a homosexual, and the jurors felt compassion for him. They could see the  tragedy through his eyes.

Did the jurors feel the same compassion for Larry, an openly gay eighth grader who sometimes wore make up and dressed in girl’s clothes?  A child of color who had his own share of family issues and lived in foster care? A youngster who was teased and harassed because of his sexuality? Like Brandon, Larry had a tough life and was victimized in school. Did the jurors feel compassion for Larry? Could they see the tragedy through his eyes?

I can’t help but wonder if the circumstances were reversed and Larry King, the gay student, shot and killed Brandon McInerney, the straight student, if there would have been a  hung jury.

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