David Fowler of the Family Action Council is counting on a twisted interpretation of two cases, Tinker v. Des Moines Independent School District and Zemecnik v. Indian Prairie School District, to support his claim that anti-bullying laws infringe on the First Amendment rights of anti-gay students. Neither case refers to civil discourse or classroom discussions. Civil discourse about differences in religion, philosophy, or politics is already protected in the schools under federal law. The wording of this amendment is broad and vague, and creates confusion about the differences between bullying and civil discourse.
The language in this amendment is not a reflection of federal law as claimed, nor is it supported by the case law David Fowler cited. Tinker was a case about students who wore black armbands to protest the Vietnam War. In Tinker, the Court distinguished between passive, non-aggressive expressions of opinions and disruptive behavior:
“The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners' interference, actual or nascent, with the schools' work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.” (Tinker, 393 U. S. 503, 508 (1969))
Bullying is not silent, or passive. Bullying is aggressive and carries intent to intimidate, harass and/or harm another student. Bullying infringes on the rights of another student. Bullying intrudes upon the work of the schools, creating a hostile environment that impedes the ability of the victim to learn in a safe environment.
Zamecnik was about t-shirts being worn by students that said “Be Happy, Not Gay”. The 7th Circuit did not find that the wearing of these t-shirts posed a risk of a substantial disruption of the educational environment. Like Tinker, this case does not support Mr. Fowler’s position either, although the distinction is harder to find without an example:
Let’s suppose my son wears a t-shirt to school that says “Libertarians like RON PAUL Worship that Atheist Whore of Babylon, AYN RAND” on the back. The shirt has this picture on the front:
Technically, this is an expression of religious, philosophical, and political speech. Legally, he can wear it every day to school, despite the fact that many of the kids in his class are admitted Libertarians and come from Libertarian families. What my son cannot do is corner a kid at his locker, in the lunchroom, or in the classroom and say to him “Ayn Rand was an atheist, and you and your parents are going to burn in hell for being Libertarians, you sinner!” That would be horrid, ugly, and bullying, and for the record, I wouldn't let my kid wear a shirt like this, nor speak to another student in this manner without getting into nine kinds of trouble from his father and me.
Why is wearing the t-shirt okay and the hypothetical statement isn’t? While the t-shirt may make various people disgusted or angry, it is a general statement of a position and displayed to everyone equally. The statement, however, is directed at a particular student and intended to cause harm or intimidate. The t-shirt is unlikely to create such a hostile educational environment that other students would be unable to learn. The statements created a specific harm to a specific student, and create a hostile educational environment for the intended victim.
David Fowler also made a claim recently that this amendment does protect students from a hostile educational environment. Actually, this amendment limits the definition of a hostile educational environment by inserting this:
“"Creating a hostile educational environment" shall not be construed to
include discomfort and unpleasantness that can accompany the expression of a
viewpoint or belief that is unpopular, not shared by other students, or not shared
by teachers or school officials.”
The term “discomfort and unpleasantness” is disturbing. This language discourages victims from reporting the bullying in the early stages. If a student is being made to feel uncomfortable by bullying directed at them by anyone, they should feel safe in reporting this to school administration so the issue can be addressed before it gets more serious. This type of language in the bill is just another example of minimizing the harm that occurs when students are harassed by other students. In effect, this clause (combined with the limiting language on what constitutes bullying earlier in the bill) tells students they should put up with this behavior until their bullies threaten them with physical harm or harm to their property.
Bullying should never get that far.
Ultimately, when a teacher or administrator addresses bullying, they are promoting a teachable moment in civil discourse. Addressing bullying is an opportunity to discuss empathy, respect, and what is acceptable behavior in a civil society. Teaching children how to discuss differences of opinion without resorting to hateful, harmful words or behavior is a worthwhile educational goal per se, that benefits society as a whole by encouraging civil discourse.
The biggest and most disturbing thing about David Fowler’s arguments in support of HB 1153 is that there is little to no mention of the victim. The focus is decidedly on protecting the person who chooses to utter words intended to harm another…to protect the bully, not the victim. Nothing in the current Anti-Bullying law restricts students from civil discourse on political, religious or philosophical issues.
Despite the Family Action Council’s protests, they are not trying to protect our kids, just those who would bully them.