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Controversial bullying bill in Mich. skewered by First Amendment scholar

As the Michigan House prepares for a possible vote today on the controversial anti-bullying bill that passed the Senate last week, legislators are reacting to the analysis of that bill by a prominent First Amendment scholar published earlier this week.

In that analysis, Douglas Laycock, the Robert E. Scott Distinguished Professor of Law at the University of Virginia Law School and one of the nation’s foremost experts on the First Amendment, said the legislation was poorly drafted and did little to address bullying.

The passage of the legislation last week prompted a national outcry. Democrats in the GOP-controlled Senate said the bill was a “license to bully,” which Republicans denied. That license was an inserted section in the bill which prohibits the law from being used to take action against people for a statement based on a sincerely held religious belief or moral conviction.

Laycock, in his analysis, said Republicans were right. While the definition of bullying was vague, he said, the reality was, it would not give permission to bullies to act out. However, he said, Republican claims the section was needed to assure First Amendment rights was wrong. He said the law — with or without the section — would still have to adhere to the free speech protections assured by the First Amendment.

Advocates and legislators from both parties responded to the analysis after seeing the full text of Laycock’s analysis.

Senate Minority Leader Gretchen Whitmer (D-East Lansing) said, “There’s little question that SB 137 as it currently exists is a joke. The Republicans turned a bill that would have been a step forward in protecting our kids from bullying and harassment into a step back. It truly did create a license to bully. I’m glad to hear that the House Republicans may remove that offensive language from the bill when they vote on it, however I challenge them to learn from what other states have already done and improve the bill in all aspects.”

Sen. John Gleason (D-Flushing) said, “Professor Laycock’s assessment shows just how off the mark this legislation is. I’ve long been an advocate for strong anti-bullying legislation, I’m especially concerned for students with disabilities who often suffer unimaginable cruelty at the hands of bullies. The bill reported from committee was not as strong as I would have liked, but I was willing to support it because the limited protections it offered where better than no protections at all.”

The insertion of the religious exemption, Gleason said, showed that “the Republicans were not taking the bullying epidemic seriously.”

Sen. Glenn Anderson (D-Westland), who led a sit-in protest when an earlier version of the bill failed two weeks ago, said, “I understand the basis for Professor Laycock’s concerns … With this version of Senate Bill 137, Senate Republicans have pulled one of the most egregious manipulations of the legislative process I have seen in my 11 years as a state legislator. By adding a last minute exemption for religiously or morally motivated bullying, Senate Republicans effectively enacted a blueprint for bullies to follow when justifying their actions. Instead of providing a safe school environment for all of our students, this bill goes in the exact opposite direction and in fact provides a license to bully.”

Rep. Lisa Brown (D-West Bloomfield), another supporter of strong anti-bullying legislation, focused on what the bill would not do. “Professor Laycock succinctly lays out why this bill will do nothing to prevent our children from experiencing bullying in our schools,” she said. “While encouraging our schools to adopt bullying policies is a small step in the right direction, the bill fails to explicitly prohibit harassment in the hallways. In fact, the bill does little, if nothing at all, to prevent harassment of any kind.”

“As it is written,” Brown continued, “the anti-bullying bill provides no protections to our students and is all pomp with no circumstance. Our schools can and should be arenas for public discourse for our kids, but I think we can all agree that adults in the workplace should not have more protections from harassment than our kids in the classroom. Our kids shouldn’t have to be fearful of or subject to malicious attacks in the classroom or over the internet.”

The only Republican to respond to Michigan Messenger’s inquiry was House Speaker Jase Bolger (R-Marshall). Bolger’s spokesperson declined to comment on the analysis because it was “out of date.” House Republicans spent Monday assuring the state they were working to address concerns about the legislation, and Bolger’s office acknowledged that not only did the Speaker oppose the religious exemption in the bill as passed by the Senate, but that that language would not be in the final bill.

The House version of the bill is slated for a vote this afternoon, without first getting a hearing before the House Education Committee. Wednesday’s education committee hearing was canceled after its chairman, Rep. Paul Scott, was recalled by voters in Tuesday’s election.

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