At the Crossroads of Title IX and a New “Idea”: Why Bullying Need Not Be “A Normal Part of Growing Up” for Special Education Children

In 21st century America, bullying of children by other children at school continues at epidemic levels. Organizations as diverse as the Department of Health and Human Services (through the National Institutes of Health and Health Resources and Services Administration (HRSA)), the National Crime Prevention Council, the National Youth Violence Prevention Resource Center, and the National Education Association, have all targeted school bullying and its consequences in various initiatives and campaigns over the last several years. These organizations argue that if schools and parents do not properly intervene to prevent bullying, the long-term ramifications for both the bully and the bullied could be disastrous. In fact, there appears to be a new momentum among parents and educators to take the problem of bullying more seriously. Recent violence at schools across the country, including the now-infamous Columbine school shooting, has made educators, parents, and children more reluctant to accept that bullying is just a normal part of growing up. Even so, legal remedies for victims of bullying continue to be woefully inadequate. Although victims of student-on-student sexual harassment have a claim for compensatory damages under the federal gender discrimination in education law, Title IX of the Education Amendments of 1972, the Supreme Court of the United States has yet to endorse the idea of a same-sex harassment cause of action for more common forms of bullying under Title IX (i.e., boys bullying boys or girls bullying girls). That being said, there is some hope that same-sex harassment causes of action for bullying behavior may become more common under Title IX as an increasing number of courts and the United States Department of Education have adopted the reasoning of the Supreme Court\u27s Title VII decision of Oncale v. Sundowner Offshore Services, Inc. In these instances, decisions have embraced Oncale\u27s central teaching that same-sex harassment need not depend upon sexual attraction or desire, but may also derive from nonsexual animus based on the failure of the harassed individual to live up to stereotypical gender norms. Indeed, research studies and anecdotal evidence suggest that those victimized by bullying are typically students who do not fit stereotypical notions of what it is to be masculine or feminine, athletic, cool, or in at school. Classic examples include not only children who are smaller, younger, gay or effeminate, obese, or from different countries, but also children who look and/or act differently from other children as a result of physical and/or mental impairments (i.e., special education children). It is the legal ramifications for verbally and physically abused special education children, mostly by members of their own gender, upon which this article focuses. Presently, most observers, and even the Supreme Court in its seminal student-on-student sexual harassment decision, Davis v. Monroe County Bd. of Educ., have yet to undertake a sufficient evaluation of the complex legal issues surrounding the bullying of special education children. To date, commentators and lower courts have primarily focused on the Title IX implications for students subject to same-sex harassment by other students and then, mostly in the context of harassment based on the actual, or perceived, sexual orientation of the student. Yet, when another student bullies a special education child based on that child\u27s appearance, behavior, or failure to live up to stereotyped notions of gender, it is necessary to consider the intersection between Title IX and the primary, federal special education law, the Individuals with Disabilities in Education Act (IDEA). Under IDEA, children with disabilities are entitled to a free and appropriate education (FAPE) in the least restrictive environment practicable. In turn, a FAPE includes special education and related services which are reasonably calculated to permit a child with a disability to benefit educationally. Consequently, actions taken by school districts to alleviate an unpleasant bullying situation for a special education child in order to comply with Title IX\u27s dictates concerning peer sexual harassment may inadvertently also violate a child\u27s right to a FAPE by altering that child\u27s placement and/or programs. In order to prevent placing school officials in this legal Catch-22, a legal model needs to be developed which ties the overlapping statutory frameworks of Title IX and IDEA together in one hybrid legal cause of action. Alternatively, if Title IX\u27s stringent legal standards for peer sexual harassment cannot be met in a given bullying case even after incorporating IDEA concepts, IDEA may also provide legal bases for special education children to obtain monetary damages against school officials who have failed to protect them from bullying, which, in turn, has violated that child\u27s right to a FAPE under IDEA. With these issues at the forefront, this article advocates two IDEA-based legal models to increase the legal protections available for special education children who are the subject of same-sex harassment/bullying at school. The first proposal attempts to provide this additional protection by strengthening the Davis Title IX framework for peer sexual harassment at school by incorporating IDEA concepts directly into that framework. Under this hybrid model, a school is liable for the same-sex harassment of a special education child where (1) the school had actual notice of the harassment; (2) the character of the harassment was severe, pervasive, and objectively offensive; (3) the school\u27s response to the known harassment was clearly unreasonable in light of its obligations under Title IX and IDEA; and (4) the student was denied a free and appropriate education in the least restrictive environment practicable or otherwise denied access to appropriate educational opportunities and benefits as a result of the harassment. Next, after addressing the lack of effective legal theories of recovery outside the Title IX context because of various procedural and substantive limitations on such claims, this article sets forth a second legal model. The second legal model involves an IDEA-based Section 1983 action for money damages, while at the same time recognizing that special education plaintiffs should normally have to first exhaust their administrative remedies under IDEA before bringing such a claim

Cognitive Illiberalism and Institutional Debiasing Strategies

This article investigates institutional debiasing strategies that may work to further minimize conflict in society over labor and employment law decisions. In this vein, Part II seeks to distill the essentials of culturally motivated cognition and how it relates to, yet differs from, other earlier studies on the role that values and assumptions play in labor and employment law cases. Part III then comprehensively explores a spectrum of debiasing strategies for legal decisionmakers, from opinion-writing debiasing strategies to institutional strategies involving specialized courts and judges. Finally, Part IV considers the arguments against such institutions, and finally, the promise of opacity in the judicial selection process

Politics Not as Usual: Inherently Destructive Conduct, Institutional Collegiality, and the National Labor Relations Board

The National Labor Relations Board (Board or NLRB) is a collegial administrative body whose adjudications are not significantly tainted by the blight of political bias. Nonetheless, it has been roundly assumed by most commentators that the Board engages in politically motivated decisionmaking because of the natural affinity between conservative Republican Board Members and employers on the one hand, and liberal Democratic Board Members and unions and individual employees on the other. Yet, this Article\u27s empirical study of agency adjudication at the NLRB - involving a comprehensive examination of all Board cases implementing the highly indeterminate inherently destructive conduct standard - covincingly suggests otherwise. Instead, it appears that Board Members are able to overcome their ideological biases and arrive at a surprising number of consistent decisions in order to foster the institutional integrity of their organization. This Article posits that the concept of institutional collegiality, developed by Judge Harry T. Edwards in the domain of federal appellate court decisionmaking, helps best explain how this counterintuitive result is possible in the midst of a purportedly partisan agency environment and under circumstances where amorphous legal standards would appear to permit the most aggressive forms of political adjudication. The ramifications of these empirical findings are at least three-fold. First, if Board Members do not consider their own political interests in making inherently destructive conduct determinations, the Board gains stature not only in the eyes of the Supreme Court and other reviewing courts, as Professor Summers has observed, but also increases its credibility in the eyes of labor and management groups that appear before it. Second, such consistent adjudicative outcomes assist parties in planning their future conduct and predicting the legality of their conduct, thereby fostering a more constructive labor relations environment throughout the country. Third, and perhaps most significantly, this empirical study suggests that institutional collegiality is playing a central and pivotal role in administrative agency adjudications. And although one study should not be interpreted too broadly, by establishing that Board Members are successfully able to act in a collegial manner by separating their political ideologies from their institutional roles and by seeking to get the law right, this Article confirms that agency adjudication can indeed play a valuable role in protecting the increasing number of individuals who seek vindication of their rights in front of these administrative tribunals

Neoformalism and the Reemergence of the Right-Privilege Distinction in Public Employment Law

The First Amendment speech rights of public employees, which have traditionally enjoyed protection under the doctrine of unconstitutional conditions, have suddenly diminished in recent years. At one time developed to shut the door on the infamous privilege/rights distinction, the unconstitutional conditions doctrine has now been increasingly used to rob these employees of their constitutional rights. Three interrelated developments explain this state of affairs. First, a jurisprudential school of thought--the subsidy school --has significantly undermined the vitality of the unconstitutional conditions doctrine through its largely successful sparring with an alternative school of thought, the penalty school. Second, although initially developed in the government as sovereign context, this subsidy approach to the unconstitutional conditions doctrine has now infiltrated the government as employer context and eviscerated large parts of the holding in Pickering v. Bd. of Education. Third, and most significantly, the nature of the subsidy argument in the government as employment context has morphed into the government speech doctrine, through which the government employer claims the speech of its employees as it own and may regulate it willy-nilly. It is this neoformalism of the subsidy school that explains the reemergence of the privilege-right distinction in public employment law. This Article argues for the restoration of Pickering, its constitutional balancing standards, and the penalty version of the unconstitutional conditions doctrine. Only when government actions that practically truncate the rights of public employees are not tolerated, will public employees be able again to assume the role of the vanguard of the citizenry, protecting fellow citizens from government fraud, waste, and abuse