Stop Bullying

April 2007

Last month, the American Civil Liberties Union trumpeted its victory in a New Jersey courtroom. The ACLU had asked the state's Supreme Court to rule that existing anti-discrimination laws outlawed "biased-based" bullying or harassment of students. In a decision hailed by many gay groups, the Court agreed, and issued a ruling intended "to reinforce the basic principle that student-on-student sexual harassment is unacceptable."

It is easy to be sympathetic with the plaintiff, identified only as "L.W." Taunted relentlessly as early as the fourth grade with epithets such as "gay," "homo," and "fag," L.W.'s junior high and high school experience was marked by ongoing verbal and physical harassment, eventually causing him to withdraw from his local high school and enroll elsewhere. His parents sued the school district, claiming they should have intervened earlier and "taken corrective action in response to the harassment L.W. endured because of his perceived sexual orientation."

Given the nasty bullying suffered by L.W., it is tempting to applaud the Court's decision and join other gay groups in hailing the ACLU's work. But thoughtful consideration suggests that the reasoning behind the ACLU's argument and the Court's decision is flawed and worrisome.

As with so-called "hate crime" laws, anti-bullying regulations that create a laundry list of protected groups challenge the concept of equal protection under the law, a hard-won principle which should not be casually undermined.

Instead of drawing up a list of groups or categories of people who are specially protected from harassment or denigration, schools should tackle the fundamental problem: debilitating bullying of any sort. Why should a suffering student have to prove he is a member of a specifically named "protected class" to demand the end to at-school persecution? Fat kids, poor kids, kids with acne, kids with unpopular parents– all likely targets for harassment; should they have to lobby legislators for special laws to outlaw their harassment? Of course not. The problem is not the specific content of relentless taunts, but rather the debilitating effect of such bullying. The New Jersey schools should have protected L.W., not because of anything he "endured because of his perceived sexual orientation," but because he had to endure undeserved abuse for any reason.

As gay people, we should be wary of ever making the content of expression subject to sanction. Gay people and other minorities have not traditionally benefited from those in power trying to control what was said about us or what we are called. Furthermore, establishing that people can be punished for certain language invites further censorship. It is a short step of logic from content-based anti-bullying statutes to hate crimes laws to bans on expressions deemed to "degrade" or "dehumanize" protected groups. Already, Canada seeks to silence pornographers on the grounds that anal sex and SM "degrade" women (even if no women are depicted!), and various European jurisdictions enforce official Holocaust history and ban certain political rhetoric lest persecuted groups feel "dehumanized."

Political tests of speech– even with the ostensibly well-intentioned goal of protecting students– are noxious and ultimately dangerous to dissidents and minorities. Instead of trying to join the laundry list of protected elite, gay people should insist that anti-bullying rules evaluate action, not political motivation. Someone who has been viciously bullied for any reason should have access to fair recourse regardless of their race, ethnicity, sexual orientation, or political persuasion. From the law we must demand equal treatment, not special protection.

Pasted from <http://guidemag.com/magcontent/invokemagcontent.cfm?ID=78B486CB-8710-4E9A-B0A236CA4AF412E6 >