The Unconstitutionality of Antibullying Legislation
ETA: Please see this comment thread for an analysis that, to me, makes some sense of why an exemption (though not necessarily one which was as all-encompassing as the one we got) might be required under the Michigan constitution.
After my Friday post on Michigan’s antibullying bill in the senate and the built-in exemption for religious/moral speech, a number of folks informed me that an antibullying law without such an exception would be unconstitutional, and any such law would be quickly overturned.
I’m trying to understand this. Looking at the decade-long debate over Michigan antibullying legislation, it doesn’t appear to have been constitutional concerns holding this up. The biggest problem was a “difference in opinion by advocates on both sides on whether or not to enumerate — meaning whether to create a list of the groups or traits most likely to be the victims of bullying.” Enumeration was seen by some groups, such as the American Family Association of Michigan, as a “Trojan Horse” for the homosexual agenda.
Most of the articles I’ve seen stress that this was the sticking point, which to me suggests that inserting the “religious and moral” exemption was a compromise to satisfy the opposition groups.
As always, I could be wrong. Maybe there’s also a valid constitutional requirement for such exemptions. Enough people were claiming so to make me want to examine the possibility.
The First Amendment says Congress shall make no law … prohibiting the free exercise of religion or abridging the freedom of speech. The thing is, there are in fact limits to both the free exercise of religion and freedom of speech. Any antibullying legislation will restrict speech by stating that certain types of speech (bullying) are unacceptable in the public school system. Likewise, for example, if my religious beliefs involve human sacrifice, the government will act to stop me from practicing that aspect of my religion.
So we obviously can pass laws that restrict both speech and religion. I think we should be very cautious about doing so, and in general I’m a strong supporter of such freedoms … but they’re not limitless.
So I started researching antibullying laws in other states. To the best of my knowledge, each of the following laws is currently on the books.
- Alaska: House Bill 482. No religious exemption.
- Alabama: Student Harassment Prevention Act. Section 16-28B-7 specifies that “This chapter shall not affect the freedom of speech and freedom of expression guaranteed each student under the Constitution of the United States and the Constitution of Alabama of 1901.”
- Arkansas: Act 907. The text of this act notes that it is not intended to “unconstitutionally restrict protected rights of freedom of speech, freedom of religious exercise, or freedom of assembly.”
- Arizona: HB 2368. No religious exemption.
- California: California Safety and Violence Prevention Act of 2000. This law forbids discrimination, but has no specific reference to bullying. Exempts private schools.
- Colorado: SENATE BILL 01-080. No religious exemption.
- Connecticut: Public Act 2-119, SHB 5425. No religious exemption.
- Delaware: House Bill No. 7. No religious exemption.
- Florida: Jeffrey Johnston Stand Up for All Students Act. “Nothing in this section shall be construed to abridge the rights of students or school employees that are protected by the First Amendment to the Constitution of the United States.”
- Georgia: Senate Bill 250. No religious exemption.
- Hawaii: House Bill 688. No religious exemption. (Admittedly, this is a short and, in the words of one representative, watered-down law.)
- Iowa: Iowa’s Safe Schools Law. No religious exemption.
I don’t have time to track down the laws of all 50 states, but I figure the first 12 provided a reasonable sample size. Of those 12 laws, I found no religious exceptions whatsoever in 8 of them (67%). Another simply excludes private schools, but has no religious exception for the public school setting.
In addition, the disclaimers in those minority of laws that include them don’t feel strike me as giving the same kind of sweeping exemption to “religious/moral” speech as the Michigan law, but that might be a matter of interpretation.
I’m not a lawyer, and legal research isn’t my area of expertise. Maybe these laws have been amended or struck down and I just couldn’t find that information. But based on the evidence I’m seeing, the argument that antibullying legislation without an exemption for religious speech would be unconstitutional and thrown out just doesn’t appear to hold water.
November 7, 2011 @ 10:10 am
I’m pretty sure the US have laws against libel and slander, and I really hope someone who ran a campaign painting gays/christians/blacks/whatever as subhuman would have to face legal consequences.
I mean, one person’s right to do and say whatever they want MUST stop where they are obviously harming somebody else, or you end up with a “might makes right” mess.
November 7, 2011 @ 11:08 am
The courts have typically held that the 1st Amendment applies only insofar as your rights to free speech, religion, etc. don’t infringe on the same rights of others. From a Constitutional perspective, it is reasonable to assume that bullying infringes on the rights of others, since it involves one or a combination of a) physical abuse, or b) psychological abuse. Since both of those elements can infringe on another’s right to exercise their freedoms (in the same way that slander/libel or threats of physical or psychological violence do in the adult world), and since there are extensive laws kin place to protect adults from various forms of harassment in places of “work,” it seems to me that there’s very little unconstitutional about creating laws to protect children from bullies. Nor is it unconstitutional to make laws that do not allow you to abuse people simply because your religion says you can. Religious exemptions, thus, are equally invalid in this arena.
But having said that, it doesn’t necessarily follow that laws need to be put into place to protect children from bullying. I would much rather see schools adopt “rules” and “procedures” that reasonably deal with these issues as they are happening in order to curb the end result (the worst case scenario being suicide). Clearly our schools haven’t been doing that, and people are sick of it.
I will shut up now…
November 7, 2011 @ 11:09 am
Many of those laws were made before the Supreme Court ruling for Westboro Baptist Church’s protesting over military and gay funerals. I wondering if that would be part of the reason for “needing an exception”. I consider Westboro’s actions bullying and hurtful, but the Supreme Court ruled that it was protected speech.
I don’t know the state of Michigan, but the religious exception might be required simply to just get it passed. The current political landscape is a brutal one to get anything passed. There are so many vehemently religious politicans right now, it has been rather frustrating. I’m making that observation based solely on the sheer number of automated calls and at-door volunteers that start their conversations with “Do you believe marriage…”.
(That said, I’m still annoyed that the Do Not Call list excludes things like political and religious calls.)
There are a lot of categories of speech that are not protected. The classic example is yelling “fire!” in a crowded theater. Obsenity is also not protected depending on the Miller test. We’ve had laws that curtail speech on the books for a very long time.
I happen to agree with you that there shouldn’t be a religious exception in this law (actually, in any law in my opinion).
I am, on the other hand, very happy that Iowa’s law is fairly extensive: “Trait or characteristic of the student” includes but is not limited to age, color, creed, national origin, race, religion, marital status, sex, sexual orientation, gender identity, physical attributes, physical or mental ability or disability, ancestry, political party preference, political belief, socioeconomic status, or familial status.
Jim C. Hines
November 7, 2011 @ 11:26 am
Yes to the first, and probably to the second, though I’m not as certain. (Again, I’m not a lawyer, so I’m not claiming to be an expert on this stuff.)
I’ve always liked the phrase, “Your right to swing your fist ends where my nose begins.”
Though now that I think about it, I’d like them to stop swinging a little further back than that…
Jim C. Hines
November 7, 2011 @ 11:28 am
The thing I like about the laws is that they *force* the schools to start taking it seriously. The laws by themselves won’t stop kids from bullying. But they might stop school districts and personnel from ignoring it or saying, “Boys will be boys” or telling the kids to tough it up or all of the other excuses and crap that basically allows and encourages that kind of behavior.
November 7, 2011 @ 12:28 pm
There’s a bright line between exercising your religion and/or free speech and abusing (mentally, physically, verbally) someone else. The “constitutionality” is a red-herring.
November 7, 2011 @ 9:49 pm
I’ve questioned at which point we declare someone’s religious practices repugnant. Do we do it when they cut the heart out of a willing sacrifice, or wait until they tear they still-beating heart from an unwilling victim?