Testimony Before the New York City Council Committee on Civil Rights Regarding Anti-LGBT Hate Crimes in NYC

The New York Civil Liberties Union respectfully submits the following testimony regarding anti-LGBT hate crimes in New York City. I would like to thank the Committee on Civil Rights for giving the NYCLU the opportunity to provide testimony today regarding the need for preventative work on this issue in public schools.

The NYCLU, the New York state affiliate of the American Civil Liberties Union, is a not-for-profit, non-partisan organization with eight offices across the state, and nearly 50,000 members and supporters statewide. The NYCLU’s mission is to defend and promote the fundamental principles, rights and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York.

As part of the NYCLU’s longstanding commitment to protect the right to a quality education for all of New York’s children, we have spent over a decade advocating for schools to prevent and address the bias-based harassment of students. Our work has included legislative campaigns in support of the statewide Dignity for All Students Act (“DASA”) and its local counterpart (“Local Law 42”), advocacy on behalf of individual targets of bias-based harassment, and ongoing participation on the State Education Department’s Dignity Implementation Task Force. In addition, our work to improve school discipline and restrict the role of the criminal justice system in schools affords us a unique perspective on the criminalization of student behaviors, including bullying.

The NYCLU receives calls from parents, students, and teachers about the rights of LGBTQ students in school, including those who are subjected to such severe harassment that attending school each day is a challenge. In our communication with educators and school staff it has become increasingly clear that schools need and want more guidance on how to enforce NY State laws that protect LGBTQ youth. Schools also need additional resources to provide training and other supports. All school staff should be trained to respond to discrimination against LGBTQ youth and institute effective preventative practices.

Today our remarks will focus on the work that still needs to be done to lay the groundwork in schools for cultural competence, empathy, and nonviolence in our streets. Fully implementing DASA is a key step in building toward a future where all New Yorkers feel safe, regardless of sexual orientation or gender identity.

I. Hate Crimes and Penalty Enhancements
The NYCLU cautions that, in a society that suffers from an addiction to over-incarceration, penalty enhancements for bias crimes should not be excessive, and their use must be carefully monitored. Legislation in this area must be limited to punishing the conduct of intentionally selecting a victim on the basis of invidiously discriminatory conduct. The law may not permit enhanced penalties based on the defendant’s constitutionally protected beliefs, opinions, expressions or associations. Thus, evidence of a defendant’s remarks, beliefs or membership in a group should not be admissible in any prosecution unless such evidence is directly and immediately related to the chain of events leading to the crime.

Finally, the due process rights of people who are accused of crimes must always be respected. Any enhanced penalty must require that the element of discrimination, like each other element of the crime, must be established by proof beyond a reasonable doubt.

Because of our reservations about the ability of the criminal justice system to achieve these ends, the NYCLU hopes the City will focus on preventative, educational work to promote tolerance and acceptance of diversity. For those reasons, our remarks today will focus largely on the implementation of New York State and City anti-harassment laws in schools.

II. The Role of Schools in Combating Anti-LGBT Violence.
Recent studies show the average age for a gay or lesbian youth to come out is now 16-years-old — down from earlier studies showing the average age at 19 to 23 years old. Despite the national increase in LGBTQ-identified young people, New York City students are still not universally provided inclusive information about sexual orientation, gender identity and LGBTQ history.

The NYCLU urges the City Council to use the rise in anti-LGBT violence as an opportunity to reinvest in our educational system and explicitly frame NYC public schools as support systems for LGBTQ youth and allies. Among the most vulnerable members of our community, LGBTQ-identified youth make up 40% of all homeless youth . LGBTQ youth are at increased risk for dropping out of school, and are more likely to attempt suicide in their lifetime than their peers. Attrition rates are intrinsically linked to school climate, and national research shows that anti-LGBT harassment in schools is widespread and persistent. More than 84% of LGBT youth report hearing “that’s so gay” used in a negative way at school, 81% report being verbally harassed and 60% said they did not report an incident of harassment because they believed no action would be taken by school staff.

Combating the rise of anti-LGBT violence in NYC communities requires an organized and comprehensive strategy. Schools play a key role in this process, not only when bias incidents involve young people or occur on school grounds but because schools have the opportunity and responsibility to instill the values of diversity and respect in the next generation of New Yorkers.

Both City and State DASA require intensive training of adults who work in schools, targeted educational programs for students of all ages, and clear pathways for the reporting, investigation, and resolution of student complaints of bullying and harassment. Both laws require the identification of a coordinator in each school who has received intensive training and ensure that the laws are implemented correctly (known as the Respect for All or Dignity Act Coordinator). Both laws place necessary emphasis on eradicating harassment on the basis of race, ethnicity, religion, disability, sex, gender identity or expression, and sexual orientation. In the experience of the NYCLU, however, based on intakes and work with our Teen Activist Project, New York City schools are implementing DASA piecemeal, if at all.

We commend the DOE for taking important steps to address bullying, including taking on a leadership role on the State Dignity Implementation Task Force, and working with recognized leaders in the field to provide training for educators. Yet it is still failing to meet all its obligations under Local Law 42—a seven-year-old local anti-bullying law—and DASA. As a result, far too few students understand the history or implications of the DASA, their rights under the law, and who they should go to for help if they feel marginalized in school. A recent survey, conducted by members of the NYCLU’s Teen Activist Project, found only nine percent of NYC students surveyed were able to correctly identify their Respect for All/ DASA Coordinator. In order to ensure LGBTQ youth stay in school and feel supported by educators and peers, the NYCLU offers the following recommendations:

1. Increased Training
DASA’s inclusion of sexual orientation and gender identity and expression as protected categories marked a tremendous moment in our state’s history. However, for DASA to reach its full potential in practice, all adults who work in school buildings must receive some training on LGBTQ history, challenges for LGBTQ youth, and how to respond to harassment in a supportive way. Non-teaching staff, such as cafeteria workers, bus drivers, and custodians need support to recognize and respond to harassment, and to challenge their own personal biases when working with children. It is not a secret that young people will act out more in the sight of a cafeteria worker or bus driver than their school’s dean. School Safety Officers (SSOs) must receive training on these issues as well—currently their pre-service training includes no specific lessons on working with LGBTQ young people or meeting their specific needs. As uniformed members of the NYPD, SSO’s ability to model respect and cultural sensitivity is a vital opportunity to teach these behaviors to young people.

Professional staff such as teachers, principals, and counselors must have more intensive training, allowing them to advise LGBTQ students, to talk comfortably about LGBTQ issues in class, and to address larger cultural themes of intolerance, violence and discrimination through lesson plans. Educators should be trained on the importance of inclusive classroom conversations, prompt responses to biased based harassment and community resources available for LGBTQ students. Increased training on LGBTQ sensitivity and DASA compliance should be provided for all school staff, including teachers, administrators and school safety officers (SSO’s) to ensure school staff are equipped with the knowledge necessary to create a safe and supportive learning environment for all students.
Increased focus on academics and standardized testing leaves limited resources and a limited number of hours to weave lessons about diversity and respect into the classroom. Educators need training on the importance of inclusive, LGBTQ positive, curricula and the impact it can have on school climate. Trainings for educators about the increased risk factors faced by LGBTQ youth are necessary to combat commonly held misconceptions that assume individuals today are more tolerant than in past generation. As a city, we need to explicitly affirm the necessity for all educators to teach tolerance in their schools.

Finally, responses to bias-based harassment cannot be based solely on punishment. Students must learn how their biases affect their school community, and be taught to take responsibility for those actions in a meaningful way. All school staff should receive trainings on how to deescalate conflict and use Guidance Interventions, such as mediation, conflict resolution and restorative circles, as the primary responses when bias based harassment occurs in schools.

2. Integrate LGBTQ-Positive Curricula in Schools
New York City students rarely receive an education that includes LGBTQ history or inclusive information about sexual orientation and gender identity. Given the diversity of our city and our schools, these students are undoubtedly left with more questions than answers about the experiences of LGBTQ New Yorkers. If we want to create a city free from homophobia and transphobia, we have to teach our youngest generation to be allies.
The Gay Lesbian and Straight Education Network’s (GLSEN) National School Climate Survey found inclusive curricula contributes to a safer school environment for LGBT students, helping them feel more connected to school and reinforcing peer acceptance of LGBT students. National research also confirms that the overwhelming majority, more than 86%, of students are not learning about LGBT history, events or people in their classes. From the NYCLU’s work with high school students, both through our youth program – the Teen Activist Project – and presenting workshops in NYC public schools, we have learned firsthand that students often receive little information about the LGBTQ community in schools. When gender and sexual orientation are discussed in classes, it is too often in a way that stigmatizes LGBTQ people and further marginalizes students.

Organizations, such as GLSEN and Teaching Tolerance, have created free lesson plans for educators on the topics of diversity, respect and LGBT history to support school districts that want model curricula to draw from. Additionally, curricula used in NYC schools to promote positive responses to diversity should include information on hate or bias crimes along with information about community-based organizations, youth friendly and LGBTQ affirming mental health care options, and support services available for victims of bias based violence.

3. Responses to Bias Based Bullying
The NYCLU recommends that any disciplinary responses to bias based incidents in school should address the root causes of discriminatory incidents. All too often, zero-tolerance policies mean student misbehavior is met with a classroom removal, with little to no time dedicated to working with the student to help them understand the situation at hand. Discipline should help students learn how to correct their behavior, and understand the impact of their actions on others, in order to create safer classrooms that are better for learning. Educators need training on how to best handle disciplinary issues, in ways that leaves the school climate intact while supporting the school’s most vulnerable youth. National research has demonstrated that bullied students felt safest when a teacher listened to their complaint and checked back in later; far fewer students reported feeling safer when their bully was suspended from school.

4. Need for Increased Data
Both DASA and Local Law 42 require a data collection and reporting component. While there are obvious situations where public reporting of individual incidents in school would be inappropriate, access to detailed aggregate data would allow the DOE, Council, and advocates to identify areas in need of support—for example, patterns of targeting LGBTQ students, boroughs or local districts where bullying is rampant, or areas where data indicates that schools are doing an above-average job of reducing incidents. We encourage the DOE to ensure that data is collected, analyzed, and actually used in real time by schools to improve their programs.

Outside of schools, the NYCLU is concerned that that the city’s current data collection on bias-based crimes does not suffice. The NYCLU supports better reporting and analysis of information related to alleged bias-crimes, information that is necessary to develop a more comprehensive approach to the underlying dynamics that give rise to bias crime. The NYCLU supports increased data collection and analysis with detailed demographic information, including race, age, gender, ethnicity, and sexual orientation, so we can better understand the state of bias crime in NYC. Data should be captured and made publicly available of alleged and prosecuted bias crimes and outcomes.

Speaker Quinn, and the entire City Council, we thank you for your attention to this important issue. New York’s constitution guarantees education to every young person in the state, and improving school climate for all students will help to ensure that we are teaching tolerance, proactively addressing anti-LGBT violence, and identifying schools as safe havens for LGBTQ youth. We hope the Council will continue to take an active role in making more detailed data about bias motivated crimes accessible to the public, and countering stereotypes and hatred in NYC through educational programs.