The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
According to the Board of Education of the Township of Montgomery in Somerset County, N.J., a sixth-grader committed "harassment, intimidation, or bullying" of a classmate:
C.C. admitted making comments to K.S. regarding his decision not to eat meat. The [Board] report found that C.C. told K.S. that "it's not good to not eat meat" and that "he should eat meat because he'd be smarter and have bigger brains." C.C. himself wrote that he told K.S. that "vegetarians are idiots." The anti-bullying specialist found that C.C. stated that K.S.'s response to his comments was amusing to him.
And last week an administrative judge upheld that decision (C.C. v. Board of Ed., 2016 WL 958848):
The District concluded that C.C. made verbal communications that were reasonably perceived as being motivated by a distinguishing characteristic between the two boys, namely vegetarianism, which substantially interfered with the rights of K.S. and had the effect of insulting or demeaning him. . . .
Definitions relative to adoption of harassment and bullying prevention policies are found in N.J.S.A. 18A:37-14, which states in part:
"Harassment, intimidation or bullying" means any gesture, any written, verbal or physical act, or any electronic communication, whether it be a single incident or a series of incidents, 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 by any other distinguishing characteristic, that takes place on school property, at any school-sponsored function, on a school bus, or off school grounds as provided for in section 16 of P.L.2010, c.122 (C.18A:37-15.3), that substantially disrupts or interferes with the orderly operation of the school or the rights of other students and that:
(a) a reasonable person should know, under the circumstances, will have the effect of physically or emotionally harming a student or damaging the student's property, or placing a student in reasonable fear of physical or emotional harm to his person or damage to his property;
(b) has the effect of insulting or demeaning any student or group of students; or
(c) creates a hostile educational environment for the student by interfering with a student's education or by severely or pervasively causing physical or emotional harm to the student.
… In this case, C.C. admitted making comments to K.S. regarding his decision not to eat meat. The report found that C.C. told K.S. that "it's not good to not eat meat" and that "he should eat meat because he'd be smarter and have bigger brains." C.C. himself wrote that he told K.S. that "vegetarians are idiots." I CONCLUDE that those comments are reasonably perceived to be motivated by the distinguishing characteristic of K.S. being a vegetarian.
Note that the decision didn't single out the nonsubstantive insult—"vegetarians are idiots"—as being the punishable statement. Instead, the decision treated this statement as on par with polite factual and normative claims (whether accurate or not), such as "it's not good to not eat meat" and "[you] should eat meat because [you]'d be smarter and have bigger brains," would be "harassment, intimidation, or bullying," presumably because they can also be "insulting or demeaning."
The punishment here was modest: "five (5) lunch-time detentions"—during which C.C. "was given the opportunity to speak with staff about his actions, with an intention of preventing future instances of such conduct"—and "no other disciplinary consequences." But the labels "harassment," "intimidation," and "bullying" (as opposed to, say, "rudeness" or "unkindness" or "personal insults") can often have much broader consequences, as I've chronicled in many past posts. And once the law calls such speech "harassment," "intimidation" or "bullying" in one area, it's easy for these labels to be applied in other areas as well, especially because the labels are so ill-defined and potentially so broad.