Newspaper column: Anti-bullying law may have widespread unintended consequences

In his latest book, “The Rule of Nobody: Saving America from Dead Laws and Senseless Bureaucracy,” Philip K. Howard writes about how American lawmakers have abandoned all pretext of common sense and letting people just work things out. For any ill that could possibly befall anyone, there has to be a law.

“America has succumbed to its own intermediate goal. Purging official discretion, not advancing the public good, has become the goal of the Rule of Law,” Howard contends. “Better to prevent a bad choice, even at the cost of banning all good choices. Unquestioned assumptions are the most powerful forces in human affairs. If people assume something is right or wrong, they’ll act on it even to the point of self-destruction. … Americans seem content to pile society high with detailed regulations as long as they succeed in preventing anyone with responsibility from actually making a decision.”

A near-perfect illustration of this observation comes to us courtesy of the late, unlamented Nevada legislative session in the form of Senate Bill 504, described by its backers as an anti-bullying bill, one which Gov. Brian Sandoval has already signed into law.

Yes, there have been problems with school officials being less than aggressive in curbing bullying of fragile school children, in a very few cases leading to tragic outcomes, such as suicide.

But SB504 is a sweeping, all-encompassing, detailed dictation to public school officials of precisely how every imaginable offensive word, gesture or facial expression must be handled and how quickly. It leaves little to discretion or judgment. If it is perceived by the most super-sensitive or supercilious child to be an affront, it must be confronted and dealt with, without fail.

Among the myriad things this law deems to be bullying are “taunting, name-calling, belittling, mocking or use of put-downs or demeaning humor regarding the actual or perceived race, color, national origin, ancestry, religion, gender identity or expression, sexual orientation, physical or mental disability of a person, sex or any other distinguishing characteristic or background of a person …”

One of the law’s unintended consequences, at least we hope it was unintended, appears to be a prohibition of gender segregation — as in restrooms, locker rooms and showers.

The law prohibits “blocking access” to “any property or facility of a school” on the basis of any of the aforementioned categories, which include sex, gender identity or expression or any other distinguishing characteristic. Can’t block access to the girls’ showers just because he is not a girl.

Nevada’s Supreme Court has long held that laws are to be interpreted according the plain meaning of their texts.

“If the Legislature’s intention is apparent from the face of the statute, there is no room for construction, and this court will give the statute its plain meaning. …” a 2012 ruling declared. “Statutes should be read as a whole, so as not to render superfluous words or phrases or make provisions nugatory.” No matter how ludicrous.

A legal analysis of the law by the Alliance Defending Freedom makes much of the fact the law will force school officials to make student bathrooms and shower facilities available to students who identify with a gender other than their biological gender.

But it also claims the law violates the First Amendment guarantee of free speech. “While SB504 does not impose criminal sanctions, it subjects students to permanent expulsion and teachers and administrators to employment termination and loss of their licenses (and thus livelihood) if they ‘tolerate’ or fail to immediately report an allegation of bullying,” the Alliance reports. “Rather than maintain the bright lines of Nevada’s pre-SB504 anti-bullying law, SB504 ventures into the uncharted realm of punishing verbal and nonverbal behavior, including ‘gestures.’

“Vagueness in a law carrying severe sanctions may violate basic notions of due process when it fails to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits or when it may authorize and even encourage arbitrary and discriminatory enforcement.”

The law demands the resolution of any complaint of bullying within 72 hours, certainly carrying implications for due process, fairness, thoroughness and, most importantly, justice.

School officials under this law could be tied up refereeing petty disputes among children instead of teaching them civil behavior and civics and reading and math.

Lawmakers should have left well enough alone and let responsible adults handle things.

The law of unintended consequences always prevails.

A version of this column appears this week in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, the Lincoln County Record and the Sparks Tribune — and the Elko Daily Free Press.



Does there really have to be a law?

One of the most overused phrases in the English language is: There ought to be a law.

There ought to be common sense, but these days that seems entirely uncommon.

Perhaps that is why Assemblywoman Vicki Dooling believed it necessary to introduce Assembly Bill 375, which would enact into state law the dictate that public school facilities — such as restrooms, locker rooms and showers — designed for gender segregation be used only by persons of the designated biological gender.

The bill is being pushed by Karen England, executive director of Capitol Resource Family Alliance, who says she discovered that two Nevada school districts — Clark and Washoe — had been contemplating adopting school policies that were basically cut and pasted from an online model policy by the National Center for Transgender Equality.

Here are a couple excerpts from the model policy:

“Students shall have access to all restrooms that correspond to their gender identity consistently asserted at school. Any student who has a need or desire for increased privacy, regardless of the underlying reason, should be provided access to a single user restroom. However, no student shall be required to use such a restroom because they are transgender or gender nonconforming. …trans

“The use of locker rooms by transgender students shall be assessed on a case-by-case basis with the goals of maximizing the student’s social integration and equal opportunity to participate in physical education classes and sports, ensuring the student’s safety and comfort, and minimizing stigmatization of the student. In most cases, transgender students should have access to the locker room that corresponds to their gender identity consistently asserted at school, like all other students. …

“All students shall be permitted to participate in physical education classes and intramural sports in a manner consistent with their gender identity.”

The accommodation of one is paramount over the discomfit of everyone else in this society in which the rule has become: Be tolerant or we’ll the beat the crap out of you.

Witness the pummeling death of two bills in the Nevada Legislature under the rubric of restoring religious freedom.

Will a bill with language such as this survive?

“For any pupil who asserts at school a gender that is different than the pupil’s biological sex, a public school shall provide the best available accommodation that meets the needs of the pupil, but such accommodation must not include access to a school restroom, locker room or shower designated for use by persons whose biological sex is different from the pupil’s biological sex.”

That’s discrimination!

Or have we forgotten that the original definition of discrimination was the ability to understand that one thing is different from another thing.

“It still comes as a surprise to many parents that there are people advocating to allow boys in the girls bathroom,” said England in a press release. “But, of course privacy opponents rarely are so blunt about their intentions. They lobby for open bathrooms and locker rooms claiming that open bathrooms actually provide more privacy and safety.”

The various draft policies stress the privacy of the “transgender” or “gender nonconforming” student to the point that it appears teachers and administrators would be prohibited from discussing with the child’s parents his/her or her/his behavior at school.

Philip K. Howard’s 1995 book “The Death of Common Sense” was prophetic.

The innocence of childhood lost.