Anti-Bullying Laws and the Misguided Drive for Social Equality

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There's no dearth of important issues for Congress to address in the lame-duck session, but New Jersey Senator Frank Lautenberg has introduced an entirely gratuitously anti-harassment bill anyway--The Tyler Clementi Higher Education Anti-Harassment Act of 2010. (Congressman Rush Holt introduced the same bill in the House.) Federal civil rights law has long prohibited harassment in schools receiving federal funds; Tyler Clementi was not the victim of harassment or any absence of rules against it: his suicide followed a gross and apparently criminal violation of privacy--the secret taping and broadcast of his sexual encounter with another male. So, there's no need for this bill and no sense in naming it after Clementi--unless you're intent on emotionally blackmailing people into supporting it. Naming legislation after a victim cuts off debate, daring opponents to risk appearing insensitive to the sufferings of survivors.

But this bill is not simply redundant; it's repressive, proposing a subjective definition of harassment that's more restrictive of speech and more likely to be applied arbitrarily than the definition formulated by the Supreme Court some 10 years ago. You can find a concise critique of the bill at thefire.org, which stresses that "the bill removes the requirement that the (alleged harassment) be objectively offensive... The bill also fails to define what constitutes a "hostile or abusive" educational environment, leaving that determination to college administrators"--administrators who have proven themselves oblivious or hostile to free speech, as a lamentably long list of FIRE's cases show.
    
Now, thanks partly to concern about online speech, administrative speech policing is reaching further into students' personal, off-campus lives, in some cases with judicial approval: The Second Circuit Court of Appeals, for example, has validated the power of administrators to punish a high school student for criticizing school officials on her personal blog. (Who knew administrators could be victims of bullying by students?) The Tyler Clementi Act would require colleges and universities to develop policies prohibiting harassment online and "in noncampus buildings or on noncampus property."

Why are liberal stalwarts like Lautenberg and Holt promoting such illiberal legislation? Bullying is the new pornography; (its also the new codependency, being broadly defined to include everything from allegedly offensive speech to criminal assaults). Concern about its effects is beginning to devolve into hysteria, reflected in the tendency to blame the suicides of troubled teens on isolated acts of bullying. I'm not excusing bullying or denying its possible consequences. I'm objecting to the reductionist assumption that it's often a primary or even exclusive cause of teen suicides. I'm pointing out the irrationalism of broadening legal definitions of harassment when current policies have already proven sufficiently tough on harassment, and unduly restrictive of speech.

The Supreme Court has defined actionable, student on student harassment (in a private civil rights claim against a school board) as "so severe, pervasive, and objectively offensive (that it) undermines and detracts from the victims' educational experience, (so that) the victim-students are effectively denied equal access to an institutions resources and opportunities." That's a fairly tight standard; it's generally focused on patterns of abusive speech or behavior, not single instances, and it attempts to inject some objectivity and predictability into harassment cases. But it's a standard regularly ignored by administrators at private college and universities who receive federal funds but mistakenly consider themselves exempt from federal standards and prohibit speech that some student or bureaucrat finds offensive, demeaning or distasteful. Such mindless censoriousness can diminish the horror of violent conduct by equating it with mere offensiveness: A sign in the women's bathroom in a suburban Boston college declares that sexual harassment includes "offensive gestures," "sexual jokes," and "invasions of body space," as well as "sexual abuse or rape."

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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