Following the tragic suicide of Rutgers student Tyler Clementi, the State of New Jersey did what so many advocates demand: pass a law. Deemed the “toughest” anti-bullying law in the nation, the applause could be heard loud and clear. And as too often occurs, the zealous “do it for the children” folks knew that it would bring about a perfect world where no child’s feelings would ever be hurt again.
Lice. Head lice, to be precise.
John Whitehead, president of the Rutherford Institute, said the enforcement of the law is problematic. Schools should be safe, he said, but well-meaning statues “are Orwellian in nature and inevitably run afoul of the Constitution.”
“How far do you take this, especially with children,” he asked. “Free speech in some instances is hurtful.”
At the time new laws are enacted, coming on the heels of tragedy or to end a horrible epidemic of hate that most will agree should end, there is something of a willful blindness toward how such laws are used on the street. Advocates of such laws tell stories of how such laws will end those tragedies, stem the horrible epidemic, and appeal to the emotions of others who share their sadness and anger toward outcomes. They tend not to talk much about the unintended victims of the laws, as that does little to further their cause.
The Rutherford Institute’s lawsuit contends its client, identified as L.L. was required to perform a sensitivity assignment and apologize to a fellow student for stating that she had lice, according to the institute’s suit.
The incident happened in September of 2011, after parents in a 4th grade class were informed that a student in the class had head lice. A few days later, one student asked another why she had dyed her hair. When she didn’t response, L.L. stated correctly that she was the student with the head lice.
To say that L.L. wasn’t the intended target of the nation’s toughest anti-bullying law now may well be true, but does little to help. You see, it met all the elements. All the hearts and flowers of advocates designed to appeal to people’s sensitivities do little to change that laws are comprised of elements, definitions, and punishments. There is no defense that “this isn’t what they meant,” as laws mean what they say, no matter what heart-rending stories are used to sell them.
The problem with anti-bullying legislation has been unfortunately clear from the outset. It is not that non-physical bullying (because physical attacks are an entirely different animal, and are subject to sanction without resort to the characterization “bullying”) isn’t real and painful.
The problem is that no one has ever come up with a viable definition of bullying that limits a law’s application to those who are intended to be its targets, and provides adequate notice to children and their parents of where the line is drawn. The reality is that every child, every person, is a bully, when the wrongfulness is determined based on the feelings of the person who believes himself or herself being bullied.
Words like “annoy” are used, which means that it “irritates” someone. Heck, I’m irritated all the time by people who are too lazy to do the work necessary to have an opinion, yet feel entitled to express whatever is floating through the dark matter in their heads. Am I being bullied? Or, because I called them “too lazy,” am I the bully? Don’t answer that.
Too often, the reaction is that if these laws, these definitions, are so grossly inadequate, then what definition would I, the critic of the law, use instead. This is a false, illogical demand, that one can’t criticize the inadequacy of an overbroad, ill-defined law that will harm unintended people, because there is no ready better answer. It assumes there must be a law, because there is a harm. It is axiomatic that the law cannot cure all wrongs that people can come up with.
As the ACLU’s Lee Rowland said, “Criminal law is a blunt instrument for regulating human dysfunction.”
Sometimes, the answer is that we may all agree that a particular course of conduct is wrong, is harmful, and we want it to stop. That does not mean that a law can be crafted that stops the harm without also doing harm to others. Sometimes, the answer is it can’t be done. Sometimes, the answer is that we have yet to figure out a way to accomplish the desired goal without causing the undesired harm.
And even though it may hurt a child’s feelings to be told that they have lice, the fact is that they have lice. It is not in society’s interest to turn the truth into a crime because it hurts someone’s feelings, or to make a child who tells the truth into a criminal.
Update: Via Eugene Volokh at WaPo Conspiracy, the disorderly conduct conviction will be withdrawn and dropped:
No one in our office who was authorized to give advice on wiretap issues or school conduct issues was ever contacted in this matter. We have made multiple attempts to contact the officer who wrote the citation. Those attempts have been unsuccessful. It is our intention to withdraw the citation on April 29 because we do not believe his conduct rises to the level of a citation.
As I noted in the comment below, there was nothing in the story to suggest that this had been run through the district attorney’s office, as some jurisdictions allow the police to bring juvenile matters directly to the court. Without this, blame can’t be leveled at the prosecutors, who apparently had nothing at all to do with this fiasco. The same can’t be said for the judge.