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."

It's clear that many college administrators can't be trusted with the discretion afforded by expansive anti-harassment policies, but they are not alone in ignoring the Supreme Court's relatively and appropriately narrow definition of harassment. The ACLU's model policy for schools defines harassment broadly to include "verbal conduct" (when people want to restrict speech they usually call it conduct) "that creates (or will certainly create) a hostile environment by substantially interfering with a student's educational benefits, opportunities, or performance, or with a student's physical or psychological well-being..."     

This may sound like a lot of legalese, but there are significant, practical differences between the Court's definition of harassment, prohibiting speech that's so objectively offensive, severe and pervasive that it effectively denies its targets equal educational access and the ACLU's definition, prohibiting speech if (according to no objective standard) it substantially interferes (or is merely predicted to interfere) with a student's performance, educational benefits, opportunities, or psychological or physical well-being. What constitutes "substantial interference"? May students be condemned as harassers for uttering one or two allegedly abusive remarks or do harassment charges involving speech require pervasive patterns of verbal abuse? How should schools evaluate claims that one student's poor performance or emotional problems have been caused by another student's speech? The ACLU policy proposal doesn't acknowledge the questions, much less answer them.

Instead, the ACLU denies the difficult civil liberties challenges of enforcing policies like this, facilely declaring that anti-harassment policies and free speech are easily reconciled and inaccurately assuring us that only "in rare instances" do schools "with good intentions can go to far" in prohibiting speech that "causes hurt feeling." In fact, as FIRE and the Student Press Law Center have documented, schools regularly "go too far," in restricting speech (absent any apparent "good intentions") often pursuant to vague and flexible definitions of harassment, similar to the ACLU's model safe school policy. (The ACLU has not adopted a public position on the Tyler Clementi Act).

That the Supreme Court has been more protective of speech in defining harassment than the ACLU reflects the persistent liberal failure to balance presumed threats to equality with a commitment to free speech. Verbal harassment cases often involve conflicts between civil rights and civil liberties, between an affirmative obligation to ensure equality and a laissez faire approach to speech. Sometimes the conflicts are difficult to resolve, as in cases involving vicious, targeted slurs against particular workers, students, or demographic groups. But, these days, the conflicts between speech and equality on campus often barely qualify as conflicts at all. Merely offensive speech, jokes, or language that someone condemns as an "interference" with a student's well-being are only threats to equality if students are so fragile and vulnerable that they're constitutionally incapable of functioning as equals, in anti-authoritarian societies that value the right to speak freely.

Free speech enabled mid 20th century civil rights movements for racial and sexual equality under law; free speech enabled the gay rights movement, which has not yet achieved legal equality but has made remarkable progress in the past 20 years. (I know that's half a lifetime or more for some individuals, but it's a moment in the history of a country). As a result of these successes, liberals and progressives have focused increasingly on achieving social equality, but it can't be mandated by law. Civil rights laws do and should regulate conduct, barring employers or school officials from engaging in discriminatory practices--in admissions hiring, firing, or promotion. But laws can't make people like each other; and laws can't force people to speak politely, civilly, or inoffensively, unless we aim for a world in which everyone is equal and no one is free.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional, and a past recipient of a Guggenheim Fellowship. More

Wendy Kaminer is a lawyer and social critic who has been a contributing editor of The Atlantic since 1991. She writes about law, liberty, feminism, religion and popular culture and has written eight books, including Worst InstinctsFree for All; Sleeping with Extra-Terrestrials; and I'm Dysfunctional, You're Dysfunctional. Kaminer worked as a staff attorney in the New York Legal Aid Society and in the New York City Mayor's Office and was awarded a Guggenheim Fellowship in 1993. She is a renowned contrarian who has tackled the issues of censorship and pornography, feminism, pop psychology, gender roles and identities, crime and the criminal-justice system, and gun control. Her articles and reviews have appeared in The Atlantic, The New York Times, The Wall Street Journal, Newsweek, The American Prospect, Dissent, The Nation, The Wilson Quarterly, Free Inquiry, and spiked-online.com. Her commentaries have aired on National Public Radio. She serves on the board of the Bill of Rights Defense Committee, the advisory boards of the Foundation for Individual Rights in Education and the Secular Coalition for America, and is a member of the Massachusetts State Advisory Committee to the U.S. Civil Rights Commission.

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