In my last post, I discussed some of the reasons why one might question how well the schools are able to implement anti-bullying programs.
I genuinely don’t know how well government schools are doing in addressing bullying, but this story from New Jersey does not inspire confidence. As discussed by Eugene Volokh, a sixth grader was found to have committed prohibited “harassment, intimidation or bullying” when he told a classmate that “it’s not good to not eat meat” and that “he should eat meat because he’d be smarter and have bigger brains,” and that “vegetarians are idiots.”
The decision, which was upheld on appeal to an ALJ, appears to have accurately applied the New Jersey statute, which defined “Harassment, intimidation or bullying” as “any gesture, any written, verbal or physical act, or any electronic communication, whether it be a single incident or a series of incidents, that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability, or by any other distinguishing characteristic . . . . “
Notice that while the statute is said to be about bullying, that is only partly true. Like many regulations against harassment, it is focused on the ordinary discriminatory criteria, such as race and gender. Much bullying is not about that. It is about harsh treatment for people based on their being a nerd or their interests or their awkward mannerism. Perhaps that is covered by the “any other distinguishing characteristic” language, but perhaps not.
Notice also that like much harassment law it prohibits a single incident. This is extremely problematic both as to harassment and as to bullying. In my view, the biggest problem from bullying involves the continuing fear that arises from a series of incidents. Moreover, the downside from bullying prohibitions is that they will mistakenly cover ordinary interactions that do not rise to the level of bullying. Prohibiting a series of incidents is advantageous here because it is much more likely to provide the involved parties with notice of what might be prohibited.
Eugene notes that the decision didn’t single out the nonsubstantive insult — “vegetarians are idiots” — as being the punishable statement. Instead, the decision treated this statement as on par with polite factual and normative claims (whether accurate or not), such as “it’s not good to not eat meat” and “[you] should eat meat because [you]’d be smarter and have bigger brains,” would be “harassment, intimidation, or bullying,” presumably because they can also be “insulting or demeaning.” Thus, the implementation of the policy in this case appears to have crossed the line, prohibiting not merely an insult with but also advice or criticism of a person’s behavior.
In the end, the “anti-bullying” law appears in many ways to be what you would expect. Not so much about real bullying, but more about a liberal agenda that is focused on protecting “protected” groups.