Anti-Bullying Laws and the Misguided Drive for Social Equality - Wendy Kaminer - National - The Atlantic
Go
Wednesday, December 15, 2010
The Atlantic Home
●
Politics
●
Business
●
Culture
●
International
●
Wendy Kaminer - Wendy Kaminer is an author, lawyer and civil libertarian. She is the author
Technology
●
●
●
Food
●
Magazine
Previous
Guggenheim Fellowship in 1993.
Bio
All Posts
Books
National
«
of I'm Dysfunctional, You're Dysfunctional, and was awarded a
●
●
Follow the Atlantic »
National Email
Share
| Next
Print
National
»
Anti-Bullying Laws and the Misguided
Drive for Social Equality
Dec 2 2010, 3:32 PM ET
Voices
Andrew Sullivan
Reforming The Regime
Megan McArdle
Edition
Holiday Gift Guide: Video Game
Ta-Nehisi Coates
'Ironman 3'
James Fallows
Real
Jeffrey Goldberg
Favreau Steps Away From
OK, It Seems the Panda-Men Are
Putin Climbs Blueberry Hill
Clive Crook Health-Care Reform and the
Constitution
Joshua Green The Growing Power of the Gay
Rights Movement
There's no dearth of important issues for Congress to address in the lame-duck session, but New Jersey
Alexis Madrigal How Unusual Would Assange's
Extradition to Sweden…
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;
Correspondents
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
http://www.theatlantic.com/national/archive/2010/12/anti-bullying-laws-and-the-misguided-drive-for-social-equality/67322/ (1 of 5) [12/15/2010 10:39:02 AM]
●
Garrett Epps
What's at Stake in the GOP's Challenge to Health Care
●
video
Anti-Bullying Laws and the Misguided Drive for Social Equality - Wendy Kaminer - National - The Atlantic
Reform
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.
●
Critics Have Been Wrong About Marketplace
Censorship for Years
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
Wendy Kaminer
●
Peter Osnos
Glad Tidings for E-books
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
Last Update: 10:35 AM
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
●
Morning Vid: Bill O'Reilly Has Gloomier
Predictions for the Left Than Usual
●
Mark Zuckerberg Is Time's Person of the Year
●
5 Best Wednesday Columns
harassment online and "in noncampus buildings or on noncampus property."
Subscribe Now
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
SAVE 59%! 10 issues JUST $2.45 PER COPY
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
Subscribe
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
Newsletters
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
Sign up to receive our three free newsletters
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
This Week on TheAtlantic.com (sample)
STATE
This Month in The Atlantic (sample)
and universities who receive federal funds but mistakenly consider themselves exempt from federal
5 Best Columns from The Atlantic Wire (sample)
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."
http://www.theatlantic.com/national/archive/2010/12/anti-bullying-laws-and-the-misguided-drive-for-social-equality/67322/ (2 of 5) [12/15/2010 10:39:02 AM]
✔
I want to receive updates from our partners and
sponsors
Anti-Bullying Laws and the Misguided Drive for Social Equality - Wendy Kaminer - National - The Atlantic
Submit
It's clear that many college administrators can't be trusted with the discretion afforded by expansive antiharassment policies, but they are not alone in ignoring the Supreme Court's relatively and appropriately
From this Author
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
Worst Instincts:
certainly create) a hostile environment by substantially interfering with a student's educational benefits,
Cowardice, Conformity, and the
opportunities, or performance, or with a student's physical or psychological well-being..."
ACLU
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.
Most Popular
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
1 Judge Rules Health Reform Mandate
Unconstitutional
groups. But, these days, the conflicts between speech and equality on campus often barely qualify as conflicts
Photos: Here's The Manor Where Julian Assange
at all. Merely offensive speech, jokes, or language that someone condemns as an "interference" with a
Will Be Staying
student's well-being are only threats to equality if students are so fragile and vulnerable that they're
The Year of Chatroulette: How the World Used
constitutionally incapable of functioning as equals, in anti-authoritarian societies that value the right to
Google Search in 2010
speak freely.
http://www.theatlantic.com/national/archive/2010/12/anti-bullying-laws-and-the-misguided-drive-for-social-equality/67322/ (3 of 5) [12/15/2010 10:39:02 AM]
2
The Preposterousness of the Commerce Clause
3
4
5
Anti-Bullying Laws and the Misguided Drive for Social Equality - Wendy Kaminer - National - The Atlantic
Free speech enabled mid 20th century civil rights movements for racial and sexual equality under law; free
Nazis Everywhere
6
It's the Annual Kitchen Gift Guide
7
the history of a country). As a result of these successes, liberals and progressives have focused increasingly on
Columbia Eminent Domain Case Will Not Be
8
achieving social equality, but it can't be mandated by law. Civil rights laws do and should regulate conduct,
Heard
barring employers or school officials from engaging in discriminatory practices--in admissions hiring, firing,
An Expert's Top 5 Cocktail Experiences of 2010
9
Aren't We All a Bit Corrupt?
10
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
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.
Presented
by
Share
Email
The Growing Power of the Gay Rights Movement
Print
More at The Atlantic
Can Obama Ever Win
Over Business?
Kissinger's Vile Words
Mean Nothing
WikiLeaks and the
Unfree Market
Why Is the Recovery
Ignoring Men?
Atheist Ads Send
Mixed Messages
Join the Discussion
After you comment, click Post. If you’re not already logged in you will be asked to log in or register.
Comments powered by Disqus
Subscribe HelpFaqFollow the AtlanticMastheadStoreJobsEducational ProgramPrivacy Policy
Site MapTerms & ConditionsAdvertisePressContact UsMerchandiseSpecial ReportsAtlantic.Live
Copyright © 2010 by The Atlantic Monthly Group. All Rights Reserved.
http://www.theatlantic.com/national/archive/2010/12/anti-bullying-laws-and-the-misguided-drive-for-social-equality/67322/ (4 of 5) [12/15/2010 10:39:02 AM]
Anti-Bullying Laws and the Misguided Drive for Social Equality - Wendy Kaminer - National - The Atlantic
http://www.theatlantic.com/national/archive/2010/12/anti-bullying-laws-and-the-misguided-drive-for-social-equality/67322/ (5 of 5) [12/15/2010 10:39:02 AM]