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Mich. anti-bullying legislation is badly written, says First Amendment scholar

A leading legal scholar says controversial anti-bullying legislation passed last week in the Michigan Senate is vague, confusing and will do little to address the problem of bullying.

“The bill does not prohibit bullying. It does not apply to students. It does not require any student to do anything or to refrain from doing anything. It requires school boards to adopt anti-bullying policies,” Douglas Laycock, Robert E. Scott Distinguished Professor of Law at the University of Virginia Law School. “It does not require the school boards to include language protecting First Amendment rights. In fact, subsection 8 appears to be entirely meaningless. It says that this section does not abridge rights under the First Amendment (which it could not do even if it tried), and this section does not prohibit statements of religious belief or moral conviction. But this section doesn’t prohibit any other statements either. It doesn’t prohibit bullying statements.”

SB 137 was passed last week by the GOP-controlled Senate, on a party line vote of 26-11, with Democrats voting no. Republicans inserted language which would allow statements based on sincerely held religious beliefs or moral convictions. That language, advocates said, was a “license to bully,” and the bill received national press as a result.

Laycock said the legislation was “badly drafted.”

“I hope the schools that implement this do a better job of drafting than the legislature did. It took this law professor 20 minutes to parse this prose; a third grader would have no chance,” he said. “So what they apparently meant to say is that the school policies that prohibit bullying should not violate the First Amendment and should not prohibit statements of religious belief or moral conviction. But they never actually say that.”

The First Amendment law expert said opponents were in correct in their assessment of the impact of the inserted language.

“Taking it for what they probably meant, instead of what they said, how should we understand this First Amendment caveat? It is not reasonably interpreted to mean that one student can bully another as long as the bullier has a sincere religious motivation. Rather, it should be taken to mean that a statement of religious belief or moral conviction, made within the bounds of civility, is not bullying – even if the recipient of the statement claims to have foreseeably suffered great emotional distress by being subjected to this disagreeable opinion,” he said. “Can the bullier repeat the statement over and over even after the target makes clear that he does not want to continue this conversation? Generally no, in the law of workplace harassment, and I would think not in the bullying context either. Students have a right to express their views and to try to persuade people who disagree with them; the initial approach or the first statement cannot be labeled as bullying. That’s what section 8 ineptly tries to say. When a speaker persists after it becomes clear that the conversation is unwelcome, and persists to the point that he violates the bill’s vague definition of bullying (or a better drafted definition in school policies implementing this bill), then he is bullying despite his religious motivation.”

Gary Glenn, president of the American Family Association of Michigan, praised the language of the legislation last week in an interview with Michigan Messenger. He was pleased with Laycock’s assessment.

“Glad to see that a First Amendment expert agrees with our assessment of the bill’s language,” Glenn said. “And thus your First Amendment expert rightly condemns homosexual activists and their Democratic and media allies who leveled such a ridiculous charge.”

Jay Kaplan, staff attorney for the ACLU of Michigan’s Lesbian, Gay, Bisexual and Transgender Project, says he agrees with the law professor.

“I agree with Doug Laycock’s analysis. The additional language was unnecessary and could ultimately confusing. It wasn’t needed and should be removed from the House Bill, but it does not provide a legal defense to the act of bullying,” Kaplan said. “I just wanted to add that where we really need to be doing the work is with the individual school districts, to make sure not only do they have effective anti-bullying policies (that preferably have enumerated categories), but equally important provide for training of both staff and students so this policy is not merely a piece of paper, but has a significant impact on the overall school environment.”

Kaplan also agrees that the legislation itself does nothing to address bullying.

“The professor is correct that all this bill does is require school districts to have anti-bullying policies. The strength of these policies and how effective they are is going to depend on the local districts themselves. A majority of Michigan school districts already have anti-bullying policies — some are effective, some are not. The most effective programs include training for both staff and students,” Kaplan says. “The bottom line is that no state law is going to eliminate the problem of bullying in schools, it’s going to be up to the local districts to come up with both a policy and program that effectively addresses the issue of bullying and harassment of students. A good state law can offer direction to the the local districts, and clearly this language regarding moral and religious beliefs is superfluous and provides only confusion to the districts.”

Emily Dievendorf, policy director at Equality Michigan, said Laycock’s assessment of the legislation was shared by her organization, which is a statewide LGBT policy group based in Detroit.

“The language needs to be stripped out completely and we need not make it look like the 1st amendment needs a defense written into a bill by merely amending their offensive and unnecessary clause,” she said. “The first amendment, by way of its existence, stands on its own and has a clear route to defense through the courts. If Republicans wish to add to this bill, they can take the national attention this bill is receiving as an opportunity to show those outside of Michigan that they can make amend SB 137 in ways that make it the strong, comprehensive, enumerated bill that Gov. Snyder refers to when he recommends that we use the State Board of Education’s policy as a blueprint.”

For Kevin Epling, the legislation is personal. It is named after his son, Matt, who committed suicide in 2002 after a bullying incident in East Lansing. Epling said he was ashamed of SB 137, and that it did not reflect his family’s values.

“Trying to have a bill that would clearly ‘outlaw’ bullying would be as laughable as the new language. Those thinking that is what this bill will do are off target,” Epling said.

“I have always seen two primary beneficiaries of this bill: the students and the parents. I would love to have all the ‘shall’ and ‘encourages’ changed to ‘must,’” Epling said. “The other part to focus on is the students who now will know that by state law schools are supposed to tackle this issue and they are to play a part. The students themselves are the biggest tool we have to combat this issue. Beginning the education process and getting them activated should be part of the overall long term plan for each school.”

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