Friday, November 04, 2011

Bad Law Makes Bad Cases

How are lawyers like nuclear weapons? Because if the other side has one, you have to get your own; once launched they can never be recalled and when they hit the ground, they screw everything up forever.

Michigan, being on the forefront of nothing, has no anti-bullying law. The State Board of Education does provide for a Michigan Anti-Bullying Policy, however, no legislation mandates even a single school district adopt the policy. There have been previous attempts to pass such legislation, all having quietly dropped from sight.

“…that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression; or a mental, physical, or sensory disability or impairment; or by any other distinguishing characteristic.”

However, this year the State Senate has decided to correct this oversight, and yesterday passed Senate Bill 137 mandating each school district implement and enforce a policy on bullying.

Good for us, right? Well…as the saying goes, the two things you should never see getting made are sausages and laws.

I suspect (with no confirmation of any sort, mind you), someone in committee worried that a statement such as “I think being gay is immoral” may be interpreted as bullying, and feared a Student stating a religious conviction would be considered a “bully” for having done so.
Stories such as this: Student expressing their opinion regarding homosexuality being immoral could generate such concern.

Therefore, SB 137 added a clause never seen in any previous submissions of the bill, providing the following exception:

“This section does not prohibit a statement of a sincerely held religious belief or moral conviction of a school employee, school volunteer, pupil, or a pupil's parent or guardian.”

The (Democrat) minority leader expressed her frustration with the exception. Her statement on video is recorded at the Huffington Post article.

On the one hand, I understand the reason behind the exception. We do not want to temper or quash a student’s freedom of expression. However, the minority leader is precisely correct, by creating this exception, the law opens a HUGE loophole that every single lawyer, even the ones fresh from law school, understand can allow for bullying.

This exception does not protect a person from striking, kicking or beating, but so what? Those actions are criminal anyway, without the necessity of a new law. The concern is (since everyone has experienced it, either by being a bully, by being bullied or observation of bullying) how to prohibit this action. And verbal bullying is what this law is designed to prohibit. (There are provisions regarding using telecommunication devices. You can’t hit someone across Facebook.)

Yet now, if the bully continues to berate the student, “Hey, gaywad. You’re so gay. What’s up, faggot?” They can cite their religious belief and this is merely freedom of expression.

The law literally gives them to provision (and arguably the endorsement) to do so.

This is a bad law. We shall see how the Michigan House addresses it.

UPDATE: Looks like the language will not stay in the bill. Shows what a different world we live in, with the internet causing such an outcry the Michigan Senate Republicans agree to back down on this.


  1. It's a shame to see that they have effective taken the teeth out of this law. :-(

    There is no religion I know of where an anti-gay stance is one of its fundamental pillars of the faith. You would think people could freely express their faith even without the clause.

    Can you think of better legalese to compromise? I was thinking that if you added a phrase like "when specifically asked for an opinion by person in conversation." after "parent or guardian" might do the trick. As in, sure, your prejudice religious misconceptions are fine for you to believe, but don't volunteer them to me unless I ask you to do so.

  2. Someone's personal reaction,

    helps make sense of the consequences.

    Per wise fool's comment above, it is very sad that"religious freedom" means this to so many.

  3. The Wise Fool,

    Unfortunately, by attempting to anticipate a compromise, the language creates more problems than it resolves. Best to take it out entirely. The simply answer is we cannot anticipate every situation, and there are times the law is inadequate to cover it. All we can hope is there enough rational mercy within the humans implementing it to solve such problems.

    We should not create more problems than we solve, though, with the law.

    A time to Rend,

    Good to see you! Thanks for the link. Seething Mom, indeed!

  4. This just seems to be one more example of how we live in a society that would rather protect the aggressors than the victims.

    Otoh, in my black humor moments, it would be hilarious to watch a fundamentalist Muslim make a sincerely held religious belief to a conservative Christian, and watch how the loophole protects the fundamentalists Muslim's comment. A taste of one's own medicine, if you will.

  5. I originally thought it made sense. The whole "Hey gaywad, faggot" thing you talked about at the end seemed like it would be illegal under the law. Who would believe that this is intended to express a religious conviction? Not me if I were on a jury. This is intended to bully. Are you sure about that?

    If you're right then I agree the language needs to be struck. Any limit on free speech scares me a little. In EU you go to jail for expressing the idea that the holocaust didn't happen. When the state gets to come in and tell you which thoughts can be expressed, next thing they do is tell you what historical truth is and they punish deviation from it. There's a lot to criticize about US laws, but one thing where they are unmatched is the freedom to express thoughts. Not perfect. Of course Obama just killed a US citizen for saying the US government should be overthrown violently, which is in fact protected speech. He killed another US citizen along with him in the drone strike. Also killed Awlaki's 16 year old son in a strike a few days later, along with his young cousin. So it's not like our government follows the law. But our laws regarding speech are very good. I'm at least allowed to talk about it without fear and call Obama a murderer (isn't killing someone in a non war zone murder if you don't give him some due process?)

    A school is not really the same as a public street corner or a blog. Or a newspaper. Kids there don't have the choice to just up and leave and not be subjected to what they regard as offensive and hurtful. So it's different in a school.

  6. OneSmallStep,

    Whenever school prayer comes up, I ask whether the person would accept Dearborn School District adopting mandatory Muslim prayers. They have a majority—what would be the problem? People always assume only sanctioned Christian prayers were removed.


    Sure. If you were on a jury. Think about a jury from Kent County (Grand Rapids area.) A conservative, bible-thumping, “I go to church EVERY Sunday” Jury. Where I, defending the poor Christian being victimized for pointing the gayness of the local gay was wrong. “Gaywad” is merely a designation for a person who affirms they are gay, right? And “faggot” is a historical term, certainly proper in its use, true? We call people “ass” meaning they are a donkey? Is every use of “ass” prohibited? Are we throwing out the Bible, now?

    Look, that nasty gay “victim” (in air quotes) is trying to push his/her gay agenda. My poor Christian client was expressing his/her Christian beliefs, as protected by the 1st Amendment, the Declaration of Independence and this law.

    (I hope you realize the sarcasm in all this.)

    Juries look for outs to make decisions they desire. Although this technically would never go to a jury, it is much the same thing. Find a bible-thumping West Side Principal, and this sentence would be used as an “out”—knowing the law, I guarantee it. (Otherwise, there is no use to have it there, true?)

  7. When I was in grade school and we learned about the Bill Of Rights.

    "Amendment I

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

    Today's society makes a mockery of our very freedoms. Because some jackass can say he's exercising his freedom of speech by calling someone else names or bullying them he is, in effect, infringing on mine. Because we have to pass laws to protect innocent citizens from our very First Amendment which was never intended to be used in this manner to begin with. I don't think our Founding Fathers had bullying in mind when they felt the need to protect speech. Maybe they thought we'd all have enough sense to use our speech in a manner consistent with our gratitude fro having such freedoms.

    The purpose of the First Amendment was to keep people like you and me from suffering at the hands of the government for dissenting against the same. We were supposed to be able to peaceably disagree with our government, not torture our fellow man.