Tag Archives: bully

Tyler Clementi and the Anti-Bullying Panic

Cross-posted from Open Market

A jury has convicted Dharun Ravi of hate crimes in the Tyler Clementi case, which created a furor over bullying that led to legislation that endangers free speech on campus, and helped spawn a thriving “anti-bullying” industry that has enriched opportunistic consultants and self-proclaimed experts. Ravi surreptitiously captured on webcam his gay college roommate, Tyler Clementi, kissing another man. Clementi committed suicide two days later. Initial media accounts falsely claimed that Ravi had filmed Clementi having sex, not just kissing, and sensationalized the case through factual exaggerations. Press reports also jumped to conclusions about the mental state of Ravi and Clementi, and falsely made it sound like there were gaps in existing law that somehow facilitated Ravi’s mistreatment of Clementi. (In reality, Rutgers, like most colleges, enforces rules against sexual and sexual orientation harassment, and New Jersey state law forbids invasions of privacy, and holds colleges liable for negligently failing to respond to anti-gay harassment committed by students, as a 2007 ruling by the New Jersey Supreme Court made clear.)

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The Good-Hearted, Wrong-Headed Anti-Bullying Campaign

Cross-posted from Open Market

“It launched a hundred ‘anti-bullying’ initiatives at all levels of
government, but much of what you think you know about” the Tyler Clementi case
“is probably wrong,” notes
legal commentator Walter Olson
at Overlawyered, the world’s oldest law
blog. Andrew
discusses this as well, linking to Ian
Parker’s article in The
New Yorker

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The Ever-Expanding Concept of “Bullying” Casts an Ominous Shadow Over Free Speech

Cross-posted from
Open Market.

A school superintendent has labeled a column in a school newspaper that criticized homosexuality as “bullying.” (The Shawano High School newspaper decided to run dueling student opinion pieces on whether same-sex couples should be able to adopt children; the student article that was labeled as “bullying” answered the question “no.” The school district also publicly apologized for the column, and said that it is “taking steps to prevent items of this nature from happening in the future.”)

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Here Comes the Anti-Bullying Bureaucracy

The overwrought anti-bullying crusade has come in for heavy and very specific criticism from Hans Bader, the lawyer and writer who played a key role in keeping out a dangerous provision of a proposed federal law on how colleges must deal with campus sexual assault.

Though Washington officials call bullying a “pandemic,” in reality, Bader writes, incidents have been declining. Like the badly overstated AAUW report on sexual harassment discussed here last week, the unwelcome good news is…

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Washington Invents an Anti-Bullying Law

image001111.jpgThere’s no federal law against bullying or homophobia.  So the Department of Education recently decided to invent one.  On October 26, it sent a “Dear Colleague” letter to the nation’s school districts arguing that many forms of homophobia and bullying violate federal laws against sexual harassment and discrimination.  But those laws only ban discrimination based on sex or race – not sexual orientation, or bullying in general.  The letter from the Education Department’s Office for Civil Rights twisted those laws, interpreting them so broadly as to cover not only bullying, but also a vast range of constitutionally protected speech, as well as conduct that the Supreme Court has held does not constitute harassment.  In so doing, it menaced academic freedom and student privacy rights, and thumbed its nose at the federal courts.

The letter successfully left the false impression that federal law already bans bullying and anti-gay harassment.  For example, a sympathetic news story reported that  “the Department of Education issued guidance to all school officials in October 2010, reminding them that federal law requires schools to take action against bullying–including . . . sexual harassment of LGBT students.”  The letter was part of a high-profile Obama Administration campaign against bullying, that recently culminated  in “a high-visibility conference on bullying prevention March 10, with the president and first lady” and the introduction by Administration allies of “several LGBT-inclusive bills designed to address bullying of students.”

But in reality, there is no federal ban on bullying, and no federal statute prohibiting sexual orientation discrimination.  Bills banning anti-gay discrimination, such as the Employment Non-Discrimination Act, have yet to pass Congress.  Existing sexual harassment laws generally do not cover harassment aimed at gays based on their sexual orientation, as opposed to their gender – even if such harassment is sexual in nature.  As the Supreme Court emphasized in its 1998 Oncale decision, “workplace harassment” is not illegal sexual harassment “merely because the words used have sexual content”; instead, victims “must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination ‘because of'” a victim’s “sex,” such that “members of one sex are” treated worse than “the other sex.”  Thus, federal courts have usually dismissed sexual harassment lawsuits brought by gay employees over bullying and foul language, in cases like Higgins v. New Balance (1999).

Harassment is legally defined even more narrowly in schools than workplaces.  In the workplace, harassment need only be severe or pervasive enough to create a hostile environment in order to be illegal.  A single, severe physical act can occasionally be enough for a lawsuit.

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The Academic Bullies Prevail

Last week, I wrote about the extraordinary adjunct appointment of Kristofer Petersen-Overton, the under-qualified anti-Israel extremist assigned to teach a graduate course in Brooklyn’s political science department. On Monday evening, amidst vitriolic, bullying denunciations from the anti-Israel CUNY faculty union, the college administration reversed course. Despite his not having completed his Ph.D. qualifying exams, Petersen-Overton will now teach the graduate-level class. Thanks to a mandate from the state legislature, in New York a primary purpose of M.A.-level courses is to train public school teachers by allowing them to study with acknowledged experts in their subject fields. The decision created an unfortunate precedent that it’s acceptable for departments to allow under-qualified instructors in graduate classes—at least as long as the instructor shares the department’s ideological preferences on a controversial contemporary issue, as was the case here. Of course, an under-qualified instructor with pro-Israel views wouldn’t get near an adjunct appointment to a graduate-level Middle East politics class at Brooklyn or at most other institutions. The timing of the affair—which was completely outside the administration’s control—is even more unfortunate. New York, like most states, is facing a fiscal crisis; and, since Governor Andrew Cuomo has promised not to raise taxes, the state will need to balance its budget through spending cuts. There’s little reason to believe that next year’s budget will spare public higher education. Like most public institutions, CUNY has high fixed costs in salaries for full-time professors and administrators, as well as maintenance and other non-discretionary items. Any reductions in state aid, therefore, will disproportionately affect the adjunct budget. Because the state legislature has underfunded CUNY for years, the university needs a reasonable adjunct budget to cover required, introductory undergraduate courses. That’s an argument the university can—and needs to—make to the legislature. Alas, it’s hard to believe most legislators won’t be more skeptical of such claims, given that the institution’s highest-profile adjunct is someone teaching a graduate elective class even though he hasn’t completed his Ph.D. qualifying exams. As I noted last week, neither option in this case was a good one for the administration, which had no role in the initial decision to appoint Petersen-Overton. But in the era of faculty groupthink, it seems that sometimes even minimal qualifications can’t be allowed to get in the way of bringing aboard someone with the appropriate message.