11/04/2011 03:14 pm ET Updated Feb 02, 2016

What Happens When It Doesn't Get Better? My Modest Proposal

Disclaimer: Before discussing my controversial legal analysis and claim, please understand -- explicitly -- that I am not advocating for anyone to bring guns to school, let alone to use those guns there. Instead, I am making a legal analysis that is, in part, a satirical parody, and, in part, based on the arguable current state of the law. The last thing that I want is another Columbine. But pretty much next to that, the last thing that I want is another queer kid succumbing to suicide as a result of school bullying.


With that provocative introduction and disclaimer, slightly over a month ago, Buffalo's Jamey Rodemeyer, a bullied openly gay student, killed himself because of the unrelenting nature of school bullying.

Last week, a cellphone video capture and subsequent Facebook post of a beat-down of a gay student at Union-Scioto High School in Chillicothe, Ohio went viral. Stemming in part from having obtained my law degree less than a 50-mile drive from Union-Scioto High School, at Ohio State -- a college I attended because I could study under Professor Rhonda Rivera, a founder of gay rights law -- I'm familiar with Chillicothe and Ohio and how sexual minorities can be treated there.

After graduating, working, and earning an advanced degree from Harvard, in August 2010 I became a law professor in Orange County, California, at the highly diverse Western State University College of Law.

The obvious part of a law professor's job is to teach. But another part of our job involves researching and proposing solutions to important legal matters, often relating to our teaching areas. My teaching area is business law, and last August, I had been researching obscure provisions of the thrilling Dodd-Frank Wall Street Reform and Consumer Protection Act.

But only a month into my stint as a business law professor, at least nine GLBTQ teen students succumbed to suicides correlated with school bullying (collectively, "bullycides"). I asked my Dean if I could shift my research to the pressing issue of sexual minority youths succumbing to bullycide. Thankfully, he agreed, and I dove into nearly all of the historical legal writings, court cases, and laws affecting this issue.

What I found was horrifying, prolonged, and systematic. Historically, the solutions that lawyers, law professors, and other gay rights advocates generally proposed amounted to ineffective frameworks, based largely on inapplicable civil rights laws. Currently, many gay rights advocates call for stronger anti-bullying laws as the fashionable panacea of the day.

But anti-bullying laws don't work. A 2009 Arkansas court decision perhaps best demonstrates why. There, teen student Billy Wolfe endured school bullying (also captured via a cellphone camera), obtained a lawyer, and sued under the state's anti-bullying law.

Yet despite plentiful evidence of bullying, the judge rejected Billy's claims. In fact, quoting the court's opinion, Billy's "claim for deprivation of the right not to bullied" was -- emphasized in all bolded caps -- "DISMISSED WITH PREJUDICE." And Billy didn't even identify as being gay.

Here in California, our state's much heralded anti-bullying legislation did nothing to prevent openly gay teen Seth Walsh from becoming one of 2010's "September's Children." Despite approximately 45 states maintaining some sort of anti-bullying laws, these laws contain broad exceptions and exemptions, leaving anti-bullying laws ineffective when applied, as partly evidenced by the more than 250,000 students who generally report physical attacks against them monthly. Shortly after one state enacted its anti-bullying law, nearly half of surveyed schools reported no bullying for that school year, although many students reported avoiding those precise schools out of personal safety concerns.

Worse, many states have compulsory attendance laws, often making it a crime for students to stay away from school, thus urging bullied students, through the coercive threat of state force, to go, day-after-day, to the very place where they're subjected to repeated and intolerable physical violence. My research discovered that, too often, teachers ignore, promote, or participate in the bullying towards sexual minority students. And evidence suggests that police, courts, and the juvenile justice system are not eager to help gay youth, either.

As a result, here's what we generally know hasn't worked to protect sexual minority students from the school bullying that leads to bullycide: civil rights laws, anti-bullying laws, police, courts, the juvenile justice system, parents who throw their kids out of the house for being a sexual minority, religious institutions that choose inflammatory language over love, media that do not portray the graphic detail and prolonged nature of bullying, the legal academy, and psychological and medical professionals who are unprepared to treat sexual minority youths. And public schools -- as government actors -- have failed of their essential function to protect peaceful students from the initiation of harm and to provide all students a safe learning environment. Thus, a systematic failure to protect sexual minority youths exists.

Because of this systematic failure, and because of an understood socially conservative reliance on a political strategy of "God, Guns, and Gays," I constructed a modest proposal based on that strategy that would hoist social conservatives by their own petard.

First, by employing the religio-moral theory known as the "lesser evil doctrine," religious conservatives can call gay youth inherently evil sinners until the cows come home, but a queer kid defensively killing one's bully represents the lesser evil compared with the evils of either committing suicide or being gay. Legal theory reflects the lesser evil doctrine via the Model Penal Code.

With morals (God) now on my argument's side, I believe that the two most recent Supreme Court cases involving the Second Amendment's fundamental right to bear arms (Guns) legitimize bullycidal sexual minority students (Gays) to legally bear arms at school and to use guns defensively.

As a result, the socially conservative mantra of "God, Guns, and Gays" can arguably be turned on its head and used as a legitimate potential weapon to reduce anti-gay bullycides.

In fewer than two weeks, I'll be on several panels at the University of Maryland School of Law's Symposium addressing LGBT Youth and anti-bullying policies and advancing my modest proposal.

Following decades of pacifism in the face of systematic violent beatings, gays' self-defensive use of force in 1969 to repel government-initiated violence at the Stonewall Inn sparked what many consider as the creation of the modern GLBT-rights movement. Somewhat similarly, following decades of pacifism by sexual minority students in the face of bullying, embracing the socially conservative God, Guns, and Gays strategy that is now arguably available after the Supreme Court's recent Heller and McDonald decisions, may, perhaps, modestly lead to a new age Stonewall for the current generation of bullycidal sexual minority students.