Katherine KerstenCAE Testimony on MN "Anti-Bullying" Bill

Katherine Kersten | February 28, 2013

MN "Anti-Bullying" Bill Draws George Will's Attention

***Kathy to Appear on Davis & Emmer (AM 1130) Tue. (Mar. 12) at 7:45 am***

Testimony of Katherine Kersten on the proposed "Safe and Supportive Schools Act" (H.F. 826) before the Education Policy Committee of the Minnesota House of Representatives on February 28, 2013

Advocates of H.F. 826 urge us to throw out Minnesota's current local control anti-bullying law and replace it with a sweeping new state-wide anti-bullying regime administered from St. Paul.

They suggest that bullying is a pervasive and escalating problem: In fact, recent surveys by the U.S. Department of Justice make clear that incidents of bullying have dropped markedly across the country in the last 10 years.

Virtually all Minnesotans oppose bullying, and want students to treat one another with civility and respect in our schools. But H.F 826 is not the way to accomplish this. The bill would harm students, create an administrative nightmare for schools and teachers, and impose an unconstitutional cultural agenda on private schools.

One of most striking (and ironic) aspects of this bill is that, unlike Minnesota's current anti-bullying law, it does not treat all students equally. Instead, it singles out certain "protected classes" of students-including race, sex, sexual orientation and "gender identity and expression"--for special attention and favored treatment. The traditional victims of bullying-kids who are, say, shy or viewed as nerds--are essentially invisible in this bill.

At the heart of H.F. 826 is an unworkable definition of bullying. The bill is a textbook example of what lawyers call "vague and overbroad" legislation. Under its definition, even "one word" that could have "a detrimental effect" on another student's "emotional health"--i.e, could hurt his feelings-can label a child a bully, a stigma that could follow him for the rest of his school career.

That means-as an ACLU lawyer pointed out about a similar bill in another state-if one sixth-grader calls another a "loser" on the school bus, he becomes guilty of bullying. The bus driver who hears the comment will be legally compelled to report it, and the school must investigate.

H.F. 826 essentially guarantees select groups of students a "safe and supportive learning environment"--again, undefined-and prohibits as bullying any words a student could arguably view as "interfering" with her "educational performance." This means that if one girl overhears another girl telling others not to vote for her as class secretary, under the law she can claim to be a victim of bullying, because the comment caused her emotional harm and upset her so much she bombed a quiz.

H.F. 826 raises so many problematic issues it makes your head spin:

  • The bill would compel schools to police "cyber-bullying," including comments a student writes on his Facebook page in his pajamas in his bedroom at midnight.
  • It would require schools to police student internet and cell phone activity on a 24/7/365 basis. So if a student texts a nasty comment to another student in July and the subject is still upset when school starts in September, the school could be legally required to launch a formal investigation.
  • H.F. 826 sets up an inevitable clash with students' free speech rights. And as the U.S. Supreme Court made clear in the Tinker case decades ago, students do not shed their First Amendment rights "at the schoolhouse gate."
  • Equally problematically, the bill would prohibit conduct that creates "a real or perceived imbalance of power between students"--imagine a court, or a teacher, trying to interpret that!--along with conduct that violates "the reasonable expectation of privacy" of any student. So presumably a girl telling a friend that her ex-boyfriend has an STD--even if he's trying to date that friend-would now be prohibited as bullying.
  • The bill also appears to withhold due process of law from students accused of bullying. It requires schools to investigate anonymous accusations and does not give students the right to confront their accusers. Paradoxically, it would permit students to harass one another by making unsubstantiated charges of misconduct with no accountability.
  • One of the bill's most chilling aspects is that students who dissent from certain state-approved cultural/political attitudes--who maintain, for example, that children do best when they have a parent of both sexes, a mom and a dad--could potentially be referred to "counseling" by school authorities for failing to sufficiently "value diversity."
  • H.F. 826 would send a message to students-at least those who belong to so-called protected classes-that they have an absolute right not to have their feelings hurt or their ideas challenged; and that authorities will intervene if this occurs. There's no better way to set kids up for failure in the real world, as psychological research makes abundantly clear.


H.F. 826 would create an administrative nightmare for school officials, and impose burdensome and confusing legal responsibilities on teachers and school staff:

  • The bill's overbroad definition of bullying would compel teachers and staff to over-report run-of-the-mill slights and disputes to protect themselves, and to avoid second-guessing by authorities or litigious parents.
  • Some teachers might seek to deflect charges that they have allowed a "hostile" classroom environment by avoiding discussion of controversial topics altogether. For example, under the bill's provisions, if a student in a social studies class says she opposes illegal immigration, a Hispanic student could claim to be offended, or charge that this statement creates "an imbalance of power" or "interferes with a "safe and supportive learning environment"-both of which the bill prohibits as bullying.


What will happen to students unreasonably accused of bullying, or to teachers and staff accused of failing to guarantee a "safe and supportive learning environment"? Such charges carry a heavy stigma. Down the road, this Scarlet Letter may interfere with a college scholarship or become a stumbling block in a teacher's career.

H.F. 826's over-reaching nature makes clear that its goal goes beyond stopping bad behavior. It would use the machinery of state education to compel children to adopt politically correct attitudes on subjects like sexuality, "gender identity" and alternative family structures.

The bill would apply, not only to public schools, but to private schools as well. It would use private and religious schools as instruments of enforcement to impose its political/cultural agenda on families who might not share it. This is a gross intrusion on parental autonomy and religious freedom, and in clear violation of the Minnesota Constitution.

For all these reasons, I urge you to reject H.F. 826, and to adopt legislation that protects our state's children from true bullying and treats them all equally in the process.

* * *

During the hearing, discussion of a prominent new book about bullying-Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy, by Emily Bazalon-took place. It was suggested that this book supported H.F. 826's approach to the prevention of bullying. I made the following points about the book:

  • Emily Bazalon focuses on the stories of three bullied children. She advises against overbroad definitions of bullying like the one proposed in this bill. She warns they could turn a "manageable" problem for schools into an "overwhelming" one.
  • Bazalon points out that most teen conflict involves-not the sort of egregious bullying that some testifiers at the H.F. 826 hearing described-but what students call "drama." This involves gossip, rumors, and (often mean-spirited) back-and-forth. The author notes that the commonality of "drama" is not surprising, given that many young people now fill their evenings watching popular T.V. shows like "Jersey Shore," which glamorizes such conduct.
  • Bazalon emphasizes that she found it extremely difficult to penetrate the complexities and arrive at the truth about the lives-and bullying-of the three students she investigated. (She adds that the same is generally true of teen suicides that the media attribute to bullying.) Often, she found, the young people involved in these incidents are not easily categorized as perpetrator and victim. Bazelon stresses that schools should be aware of how difficult determining the truth about teen conflict can be as they adopt bullying policies.

Katherine Kersten is a senior fellow at the Center of the American Experiment. She is at kakersten@gmail.com. 



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