The bill has generated much controversy for including an apparent exception for bullying that is motivated by "a sincerely held religious belief or moral conviction." Because many of the articles I've seen regarding this bill have seemed to be mostly talking points rather than analysis of the text itself, I decided to take a look at the text (which is cited at the above link) and see what this was all about.
Integral to any anti-bullying initiative or law is the definition of bullying.
Accordingly, the bill defines bullying as, "any written, verbal, or physical act, or any electronic communication, by a pupil directed at 1 or more other pupils that is intended or that a reasonable person would know is likely to harm 1 or more pupils either directly or indirectly by [basically doing anything that interferes with a student's education or participation in school activities, that causes physical or mental harm to the students, or that interferes with the school's operations]."
The "reasonable person" standard is always tricky. It assumes an objective take on what's reasonable and, oftentimes, it's not those who belong to regularly-victimized groups who are thought to have that objective (or reasonable) viewpoint. Some of the US' Worst Court Cases For Women, for instance, are predicated on the sexist notion that the viewpoints of men regarding rape, women's suffrage, and women's right to practice certain professions are more objective and legitimate than women's viewpoints regarding such matters.
Similarly, those who are deemed arbiters of which acts and statements constitute bullying have a real power to legitimize and perpetuate hostility against certain groups of people by simply "failing to see" any resulting harm that bullies cause.
For instance, the bill also mandates that a school board's anti-bullying policy must include a statement against, and impose sanctions upon, "false accusations of bullying." If student-on-student sexual harassment, which nearly half of all students report experiencing, is regularly treated by "reasonable people" with "boys will be boys" or "girls aren't capable of harassing boys" dismissals, will students become even more reluctant to report it if they fear they will be punished for making "false accusations of bullying"?
The power to define also cuts to another issue, one raised in my previous post on bullying and civility: Is one only capable of being a victim of bullying if one belongs to a recognized oppressed group? Or, are all schoolchildren, by virtue of their age and their "captivity" in school environments capable of being bullied?
The bill would agree with the latter, as it explicitly states that a school board's anti-bullying policy must include a "provision indicating that all pupils are protected under the policy and that bullying is equally prohibited without regard to its subject matter or motivating animus." I lean toward agreeing with this broader definition than with an enumerated list of officially-recognized victims, because I think an enumerated list creates acceptable and unacceptable targets of hostility, an act which can in turn trivialize other kids' very real experiences of pain. Would weight, for instance, be included? What about ridiculing kids for being adopted, being donor-conceived, or for having same-sex parents?
Problematically though, the "equally prohibited" provision conflicts with the later provision regarding the special exception for acts and statements motivated by religious or moral conviction, thereby enumerating acceptable and unacceptable forms of hostility. That provision begins:
"This section does not abridge the rights under the First Amendment of the Constitution of the United States or under Article I of the State Constitution of 1963 of a school employee, school volunteer, pupil, or a pupil's parent or guardian."
Well, yeah. The First Amendment of the US Constitution (and Michigan's Constitution) would trump a state law anyway. It's not like merely saying, within the text of a law, that a law isn't unconstitutional magically makes it so. Certainly not in SCOTUS' eyes. So, like, whenever you see such a provision in any law, it should start to raise a red flag. The special religious/exception provision continues:
"This section does not prohibit a statement of a sincerely held religious belief or moral conviction of a school employee, school volunteer, pupil, or a pupil's parent or guardian."
So here, to me, the red flag is ultimately hoisted. The bill seems to be making the implicit argument that because (a) "certain types of statements against certain types of people" (I insert sarcastic quotes here because many of us know which types of people tend to be singled out by those with "sincerely held religious belief or moral convictions") constitute Freedom of Speech/Religion, then (b) this bill is trying not to violate religous people's right to share with others their "sincerely held religious belief[s] or moral conviction[s]" about those certain types of people.
And so, like I was saying above. The power to define what constitutes bullying is a big power to have. Despite how the bill says that all bullying is prohibited "without regard to its ... motivating animus," the bill also potentially un-categorizes religiously-based and morally-based bullying as bullying. Given that some religious people do make written or verbal statements that result in harm to LGBT people, and that many reasonable people recognize such statements as harmful, this law's effect could be to say that "no, that's not bullying, it's just people stating sincere (and civil? kind?) religious beliefs."
Or, it's saying that certain statements may constitute bullying, but religious people's free speech/religious rights are more important than some people's right to be free from bullying. SCOTUS recently took a similar view regarding Fred Phelp's First Amendment rights (PDF). Which begs another question- what if a student regularly tells gay kids that "God" punishes the US for its tolerancy of homosexuality and that "God hates fags"?
Does this provision imply that it would constitute a "false allegation of bullying" if, say, a gay kid objected to these statements? Under this bill, does it become bullying to characterize religiously-motivated bullying as bullying? The bill needs to better address these questions.
In any event, I agree with Gretchen Whitmer (D-East Lansing) who noted that the bill provides a "blueprint for bullying." It seems to say that it's okay to make hostile, bullying statements as long as they're sincerely held and supported by powerful (or even marginal) religious or moral conviction. Practically speaking, this one little clause could negate all the effort that school districts would be expected to put into implementing anti-bullying policies under this new law.
[Cross-posted at Family Scholars Blog]
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